BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
VILAS COUNTY COURTHOUSE EMPLOYEES
UNION, LOCAL 474-A, AFSCME, AFL-CIO
(Grievance of Connie Gengle)
Mr. David A. Campshure, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, on behalf of Vilas County Courthouse Employees Union,
Local 474-A, AFSCME, AFL-CIO.
Prentice & Phillips, Attorneys at Law, by Mr. John J. Prentice,
on behalf of Vilas County.
Vilas County Courthouse Employees Union, Local 474-A, AFSCME, AFL-CIO,
the Union, requested that the Wisconsin Employment Relations Commission appoint a staff
to hear and decide the instant dispute between the Union and Vilas County, hereinafter the
in accordance with the grievance and arbitration procedures contained in the parties' labor
The County subsequently concurred in the request and the undersigned, David E. Shaw, of
Commission's staff, was designated to arbitrate in the dispute. A hearing was held before
undersigned on October 14, 1999, in Eagle River, Wisconsin. There was no stenographic
made of the hearing and the parties submitted post-hearing briefs in the matter by December
1999. Based upon the evidence and the arguments of the parties, the undersigned makes and
the following Award.
The County raises the following issues as to arbitrability:
1) The grievance does not involve a dispute
regarding the interpretation or application of the
2) The grievance is moot since
it was not denied and the remedy sought has been granted.
3) The grievance involves
If the grievance is found to be arbitrable, the parties stipulated
that the substantive issue is:
Did the actions of the Corporation Counsel on March 25, 1999,
as an agent of the County,
violate the parties' Collective Bargaining Agreement, Article II, D and Article XXIV, A, in
particular? If so, what is the appropriate remedy?
The following provisions of the parties' Agreement are cited, in relevant part:
Article II Management Rights
The County possesses the sole right to operate County
government 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:
. . .
D. To suspend, demote, discharge and take
other disciplinary action against employees
for just cause;
. . .
The County agrees that it will not use
these management rights to interfere with the
employees' rights established under this Agreement or for the purpose of undermining the
discriminating against its members.Any dispute with respect to the
reasonableness of the application
of said management
rights which are mandatorily bargainable
with employees covered by this Agreement may be
processed through the grievance and arbitration procedure herein.
. . .
Article VII Grievance Procedure
A. Definition of Grievance: Any employee or
group of employees in the Vilas County
Courthouse unit who has a dispute regarding the interpretation or application of the
provisions of this
Agreement shall have the grievance processed in the following manner.
B. Time Limits: Time limits set forth in this
Article must be strictly adhered to and the
failure of any party to comply with the timelines will be considered a waiver of the grievance
part of the Union or a sustainment of the grievance on the part of the Employer. If it is
to comply with the time limits specified in the procedure because of work schedules, illness,
vacations, etc., these limits may be extended by mutual consent in writing.
. . .
D. Steps in Procedure
Step 1: Within ten (10) working
days from the date of the event(s) or
when the grievant(s) knew or should have known of the event(s) giving rise to the grievance,
the grievant(s) shall submit a grievance, in writing, to the immediate supervisor. The
immediate supervisor shall meet with the grievant(s) and/or the Union representative within
ten (10) working days and shall give a written answer to the grievance within ten (10)
working days of the meeting.
Step 2: In the event the grievance
cannot be satisfactorily adjusted by
the immediate supervisor, the grievance will be submitted in writing to the Personnel
Committee of the County Board within ten (10) working days of the date of the immediate
supervisor's written answer. The Personnel Committee shall meet with the grievant(s) and
the Union representative at a mutually agreeable time. The Personnel Committee shall give
its answer, in writing, to the grievant and the Union within ten (10) working days of the
If the grievance is not settled at Step 2 and the Union intends
to process the grievance to arbitration,
. . .
E. Arbitration Hearing: The arbitrator selected
or appointed shall meet with the parties
at a mutually agreeable date to review the evidence and hear testimony relating to the
Upon completion of this review and hearing, the arbitrator shall render a written decision to
County and the Union which shall be final and binding upon the parties.
. . .
H. Decision of the Arbitrator: The arbitrator
shall not modify, add to or delete from
the express terms of this Agreement.
. . .
Article XXIV Miscellaneous Provisions
A. Conduct: The Union and the Committee
consider themselves mutually responsible
to improve the public service through the creation of improved employee morale and
this connection, the parties shall encourage the employees to conduct themselves in a
manner on the job.
. . .
The Grievant, Connie Gengle, is an Administrative Secretary in the UW-Extension
the Vilas County Courthouse and a member of the bargaining unit represented by the Union.
instant grievance concerns an exchange between the Grievant and the County's Corporation
William Glaves, on March 25, 1999. Mr. Glaves also acts as a representative of the
The County was in the midst of purchasing a new telephone system at the time in
On March 25, 1999, a woman from the telephone company responsible for installing the new
telephone system arrived at the UW-Extension office and there ensued a discussion between
various individuals in the offices that would be using the system, the UW-
Extension office and the Advertising office, including the department head, Brian
Pierce, as to what
was needed. The individual from the telephone company advised that if changes were to be
what had been ordered, it would cost less to make those changes before the system that had
ordered was installed. Pierce asked Gengle to call Glaves and ask him to come to their
office, as it
was assumed that he had some role in what was being purchased and installed. Gengle
and asked him to come to the UW-Extension office. There is some dispute as to what
Glaves arrived at the Extension office. Gengle and two other individuals who were present
25th testified as to what they saw and heard and Glaves testified as to what
he felt had occurred.
While there is a dispute as to whether certain words were silently mouthed by Glaves toward
there is no dispute that Glaves' conduct was offensive and unprofessional.
On March 26th, Gengle filed an incident report on the matter and
filed a grievance on March
29, 1999 which stated, in relevant part:
(The contention what did management do
wrong?) (Article or Section of contract which
was violated if any)
Article II Item 1) Bill Glaves verbally
reprimanded employee without just cause.
Article XXIV, Item A, Bill Glaves' behavior, verbals (sic) and
physical actions created a hostile
situation. Contributing to an overall hostile work environment, particularly in view of the
the incident occurred in the presence of an outside vendor.
The Request for Settlement or corrective action desired):
That Bill Glaves be required cease and desist from any pattern of
harassment & verbal &
otherwise directed at the employee for either personal reasons or based on her union
County work rules be reviewed with Bill Glaves (particularly Item IV, #2, #6 and #9 &
consequences of violating those work rules be administered fairly & equally (see
Attached to the grievance was a written statement as to what she felt had occurred and
a copy of the
County's work rules which, in relevant part, included:
WORK RULES VILAS COUNTY
EMPLOYEES OF VILAS COUNTY ARE PROHIBITED FROM
COMMITTING ANY OF THE
. . .
IV. PERSONAL ACTIONS AND
. . .
2. Threatening, intimidating, interfering with or abusive
language towards others.
. . .
6. Making false or malicious statements concerning other
employes, supervisors or the
. . .
9. Immoral conduct or indecency
. . .
The Union requested that the parties bypass Step 1 of the grievance procedure as the
department head was not involved and asked the Personnel Committee to notify the Union
immediately if that was not acceptable.
On March 30, 1999, Glaves sent the following memorandum to everyone who works
Extension and Advertising offices, including the Grievant:
To: All members of the Extension and Advertising Offices
From: Bill Glaves
Date: March 30, 1999
Re: Meeting in Extension/Advertising Offices on Thursday
March 25, 1999
I would like at this time to apologize to
everyone in the Extension and Advertising Offices for
my behavior when I met with all of you last Thursday with regards to the new phone system
Courthouse. Until I received and read the union grievance filed yesterday, I did not realize
that my behavior had shocked or offended some or all of you.
While I unequivocally deny that I ever mouthed nonverbally an
offensive word to anyone in your
offices at the meeting last week, I am sorry that I lost my temper and started yelling. As
correctly pointed out, we should all be working together towards solutions to our mutual
and concerns. I want all of you to know that I respect each and every one of you in the
of your jobs and realize that we are all working hard on the matters that are important to us.
I assure you that my behavior from last Thursday will not be
repeated in the future. I will be
redoubling my efforts to provide constructive and positive ideas and thinking to the issues
County, and look forward to working with all of you in the future.
On April 1, 1999, the Personnel Committee issued Glaves the following letter which
We have read and studied the two write-ups, yours and the
University Extension people, about
the discussion that was had regarding the telephone service on March 25, 1999. We support
commend you for the hard work that you do for Vilas County, much of it beyond the
of Corporation Counsel. However, we do not support or commend you in the way you
yourself during that discussion on March 25th.
Bill you are an attorney a professional and most
of the time a very good one with a broad
vocabulary, so there is no need to use language more becoming of a cinder snapper in a steel
a switchman on a railroad. When you wrote your explanation of the discussion you admitted
some of this kind of language. What we want to do is get this matter behind us with the
matters before us. We feel that it is imperative that you do two things: 1) make sure that
from any more similar expressions in the future; and 2) write an apology for your adverse
March 25th and send a copy to each individual that was present at that
. . .
Thereafter, the County refused to discuss or respond to the grievance further until the
County's legal counsel sent the Union's representative the following letter of May 20, 1999
response to the Union's notice to the County that due to the lack of a written response, the
was processing the grievance to arbitration:
Re: Vilas County (Grievance No. 99-5)
On April 26, 1999, the Vilas County Personnel Committee
conferred regarding the grievance in
the above-referenced matter. At that time, the Committee requested that I draft a response
behalf. Unfortunately, I let this matter slip through the cracks. However,
the Committee, by
correspondence of its Chairman, instructed Corporation Counsel Glaves to cease and desist
using offensive language and, to the extent reasonably possible, refrain from future vitriolic
with employees. However, it is important to understand that Mr. Glaves effectively acts as a
personnel manager. Owing to this, there may occasionally be difficult exchanges between
and union employee/officers. While it is incumbent upon all the individuals involved to
modicum of decorum, the very nature of industrial relations often involves confrontation.
Please be advised that while Mr. Glaves has been admonished not
to engage in the type of
conduct complained of here, he will nonetheless fulfill his responsibility as an instrument of
Personnel Committee to the same extent and with the same zeal as he has in the past. The
Committee is adamant this incident does not compromise Mr. Glaves' status or authority.
If you have any further inquiries regarding
this matter, please do not hesitate to contact us.
Thank you for your cooperation. I apologize for the delay in responding sooner.
Very truly yours,
Prentice & Phillips
John J. Prentice /s/
John J. Prentice, Esq.
The above letter was followed by a letter of May 28, 1999 from County's legal
counsel to the
Union's representative which read, in relevant part, as follows:
Finally, we do not understand why the Union intends on pursuing
the grievance against
Corporation Counsel Glaves to arbitration. First, we do not believe it is arbitrable inasmuch
County tacitly accepted the grievance. Second, we do not believe the facts constitute a
the collective bargaining agreement. Third, the County will most likely demur to the
it appears there would be no remedy available. And fourth, the Union does not have
with respect to this particular dispute.
The grievance was thereafter processed to arbitration before the undersigned.
POSITIONS OF THE PARTIES
The Union first asserts that as a factual matter, Glaves did mouth a profanity at the
regardless of his denial of doing same. Both Ploetz and Otte testified that they clearly saw
mouth the specific obscenity directly at the Grievant. In addition to the testimony of the
Ploetz and Otte, there were three other persons in the office at the time of the exchange who
a letter that was sent to the Chair of the Personnel Committee describing the incident.
despite the vague accusation that the Union's hands were not clean in this dispute, Ploetz and
are not even County employes, but are employed by the State and the department head,
is not a bargaining unit employe. There was no Union conspiracy against Glaves.
The Union asserts that Glave's statement to the Grievant amounted to discipline
cause in violation of the management rights provision of the Agreement. That provision
the County has the right to "suspend, demote, discharge and take other disciplinary
employes for just cause." (Emphasis added). The phrase "other disciplinary action" is not
in the Agreement, however Glaves' verbal and non-verbal harassment of the Grievant in
others constitutes discipline. Roberts' Dictionary of Labor
Relations, (BNA, Third Edition, 1986),
notes that "discipline as a form of punishment to obtain conformance may be subject to
but it is widely-used in labor-management relations." Similarly, Black's Law
Dictionary, (West, Sixth
Edition, 1990), includes in the definition of "discipline", "correction, chastisement,
penalty to bring order upon, or bring under control." Clearly, the Grievant was corrected,
or punished by Glaves for speaking up. While the County attempted to show that Glaves did
have authority to discipline employes, the County's legal counsel, in his letter of May 20 to
Union's representative, stated that "Mr. Glaves effectively acts as a front-line personnel
Thus, the County contradicts itself.
The Union also asserts that Glave's conduct violated the parties' "conduct clause" in
Agreement. The parties felt strongly enough about the importance of promoting morale,
and security that they included a conduct clause, Article XXIV, A, in the Agreement which
"The Union and the Committee consider themselves mutually
responsible to improve the public
service through the creation of improved employe morale and efficiency. In this connection,
parties shall encourage the employes to conduct themselves in a workmanlike manner on the
In refusing to discuss this grievance with the Union, the County stated that it "does not
facts constitute a violation of the collective bargaining agreement." While it is apparent the
does not believe the conduct clause applies to its agents, the parties are mutually
improving service to the public through improved morale and efficiency. As the County's
frontline personnel manager, Glaves directed a profanity at a female clerical worker in the
of an outside vendor, Pierce and co-workers. By any standard, he did not conduct himself in
workmanlike manner on the job, and his behavior had the effect of decreasing, not
employe morale and efficiency. Thus, his actions violated the conduct clause. Had a
employe acted in such a manner toward another employe or supervisor, the County would
quick to discipline the employe; however, here the County informed the Union that Glaves
told to "cease and desist from using offensive language" and "to the extent reasonably
refrain from future vitriolic exchanges with employes." The same letter goes on to note that
may occasionally be difficult exchanges between Mr. Glaves and Union employes/officers" in
"the very nature of industrial relations often involves confrontation." While collective
at times be confrontational, it is difficult to envision any situation in the workplace in which
behavior as exhibited by Glaves would be deemed appropriate.
The Union asserts that the County's failure to adhere to the timelines and to meet
Union and discuss the grievance must result in the "sustainment" of this grievance by default.
VII, Section B, states: "Time limits set forth in this Article must be strictly adhered to and
of any party to comply with the timelines will be considered a waiver of the grievance on the
the Union or a sustainment of the grievance on the part of the Employer." In filing this
Step 2, the Union requested that the Personnel Committee notify the Union if it did not agree
bypass Step 1. The County did not express any objection and in fact refused to acknowledge
grievance had even been filed. On at least two occasions, the Union was refused the
discuss the grievance with the Committee, including the April 27th
Committee meeting, where
although the matter was listed on the agenda, the Union's attempt to speak was cut off by
The matter was again tabled without any discussion at the Committee's May 25 meeting.
Step 2 of
the grievance procedure provides that, "The Personnel Committee shall meet with the
Union representative at a mutually agreeable time." While the Committee met with the
apparently felt it did not have to actually discuss the grievance. Had the Committee
Union the opportunity to discuss the issue, it is likely that the dispute would have been
In its reply brief, the Union reiterates its assertion that Glaves' conduct violated the
and the conduct provisions of the parties' Agreement. The Union disagrees with the
assertion that this arbitration proceeding constitutes an abuse of process, and counters that it
County that has abused the parties' mutually-agreed upon grievance procedure by refusing to
acknowledge the grievance and discuss it with the Union. In doing so, the County not only
the terms of the grievance procedure by failing to adhere to the timelines, but the parties
avoided this proceeding had the County discussed the matter with the Union in a timely
As relief, the Union requests that the County be ordered to direct Glaves to cease and
from engaging in such behavior in the future, and also requests that the County be ordered to
by the contractual grievance procedure by adhering to the specific timelines and by meeting
grievants and the Union to discuss grievances that reach Step 2.
The County disputes that the alleged conduct amounts to disciplinary action. Even if
allegation of the Union is accepted as true, it would be ludicrous to characterize Glaves'
imposing discipline in the industrial relations context. What occurred was merely a heated
between co-workers. The uncontroverted testimony of both Glaves and the Personnel
Chairman indicated that as Corporation Counsel, Glaves has no authority to either discipline
or effectively recommend their discipline. Although he acts as "personnel manager" for the
that function is limited to coordinating Committee directives with department heads and
personnel. He has no management or supervisory authority over bargaining unit
employes, other than
perhaps his own secretary. As a long-time employe and former Union officer, the Grievant
acquainted with the organizational and management structure of the County and is well aware
Glaves' lack of authority in that regard.
The County also disputes that the alleged conduct violates Article XXIV, Section A,
Agreement. That provision implicates the Personnel Committee's responsibilities, not the
Corporation Counsel's. Glaves is not a member of the Personnel Committee and was not
its agent or under cover of its authority when he allegedly engaged in the conduct in
the Committee fulfilled its obligation under that provision by issuing Glaves written
directing him to "refrain from any more similar expressions in the
future" and to write an apology for his actions and send a copy to each individual who
at the meeting. Glaves not only did so prior to the directive of the Committee, he assured
individuals his behavior would never be repeated.
The Grievant's request for a corrective action states that "Bill Glaves be required (to)
and desist from any pattern of harassment verbal and otherwise directed at the employe for
personal reasons or based on her union activities. That County work rules be reviewed with
Glaves, particularly Item IV, No. 2, 6 and 9 and that the consequences of violating those
be administered fairly and equally." Glaves has already been ordered to refrain from the
complained of, and there is no evidence whatsoever of it being a "pattern" of verbal or any
harassment. Secondly, the only work rule that Glaves' alleged conduct possibly implicates is
IV, No. 2, prohibiting County employes from using abusive language towards others. The
Committee's April 1, 1999 memo to Glaves clearly is a review of the work rule regarding
language. Number 6 of that rule proscribes "making false or malicious statements
employes, supervisors, or the department." Rule No. 9 of that section forbids "immoral
indecency". Neither of the latter two rules have any application here, and none of the
above-mentioned work rules involve the "interpretation or application" of the parties'
Agreement and thus,
are clearly not arbitrable. Finally, there is nothing in the record from which to conclude that
rules have not been administered fairly and equally. Inasmuch as the Personnel Committee
already granted the remedy sought by the Grievant, the grievance is moot and should be
In its reply brief, the County asserts that it is important to recognize that the Grievant
vehemently dislikes Glaves. Further, there is little question that the individuals who work in
department collectively blamed Glaves for the perceived inadequacies of the telephone
summoned Glaves to the office, and then made him feel as though he had been ambushed.
Glaves reacted poorly and his conduct was inexcusable, it was to some extent understandable
the context of human interaction. People can speak words that are on their face innocent,
they can say them in such a manner and tone as to convey another more subtle message and
another. That is what happened in this case.
As to the Union's assertion that Glaves' alleged conduct constituted "discipline" as
by Robert's Dictionary of Industrial Relations, the Union failed
to show what rules or procedures
Glaves was attempting to encourage the Grievant to follow or what form of "punishment" has
imposed. The County asserts that it was unable to locate even one case in which profanity
part of a management employe was found to constitute the imposition of discipline. Even if
alleged conduct could somehow reasonably be construed as imposing discipline, it is clear
not only had no such authority, but he was severely rebuked for the alleged conduct. While
County's letter of May 20, 1999
referenced Glaves' acting as a "frontline personnel manager", perhaps the choice of
words was less
than artful. However, it is clear from the uncontroverted testimony that Glaves possesses no
authority to discipline or effectively recommend discipline.
The Union's own argument regarding the application of the contractual grievance
also vindicates the County's conduct in this case. Although the Personnel Committee failed
with the Grievant, the County's legal counsel had several telephone discussions with the
representative regarding the disposition of the grievance and whether a meeting was actually
necessary. Ultimately, however, pursuant to the grievance procedure provision regarding
the failure of the Personnel Committee to meet with the Grievant and Union constituted a
"sustainment (sic) of the grievance on the part of the Employer". Thus, the County's letters
20 and May 28, 1999 accurately reflected that the grievance had been accepted, not only
was the belief of the Committee, but by the command of the Agreement, pursuant to the
of Article VII, paragraph B. Thus, there was no further duty to meet with the Union. Since
grievance has been accepted and the remedy requested by the Grievant has been obtained,
was ordered to cease and desist from such conduct and to apologize, and he has been
is unnecessary for the Arbitrator to order similar relief.
The County requests that the instant grievance be denied as it does not involve a
regarding the interpretation or application of the Agreement and the alleged conduct, even if
does not amount to disciplinary action. Further, the Grievant has already obtained the
and the grievance is therefore moot.
The County has raised the issue of arbitrability. Among the bases offered in that
County asserts that the grievance is moot. For the reasons set forth below, the undersigned
As the Union points out, Article VII, Grievance Procedure, Section B, provides that
of any party to comply with the timelines will be considered a waiver of the grievance on the
the Union or a "sustainment (sic) of the grievance on the part of the Employer. . ." The
was submitted on March 29, 1999 at Step 2 to the Personnel Committee. On April
1st, the Personnel
Committee issued Glaves what must be considered a letter of reprimand which concluded
directive to Glaves to "1) make sure that you refrain from any more similar expressions in
and 2) write an apology for your adverse actions on March 25th and send a
copy to each individual
that was present at that meeting." As it turns out, Glaves had already issued a written
March 30th addressed to everyone in the Extension offices for his behavior
on March 25th, albeit he
denied the Grievant's allegation that
he had silently mouthed obscene words at her. While that particular detail is in
dispute, his overall
behavior is not, and that is what was grieved. Although the County appeared by its actions
granted the grievance, it did not directly respond to the grievance in writing until the letter of
20, 1999 from its legal counsel to the Union's representative, nor did it ever meet with the
the Grievant to discuss the matter. Hence, by operation of Article VII, Section B, the
be considered to have been sustained by the County. That being the case, the only question
is whether the relief sought has already been granted.
The grievance requested that Glaves be required to "cease and desist from any pattern
harassment verbal and otherwise directed at the employe. . .", and that the County's work
reviewed with Glaves and that "the consequences of violating those work rules be
and equally." The Personnel Committee on April 1st directed Glaves "to
refrain" from such conduct
in the future and to apologize in writing, which he had already done. The Union's Steward,
Vogel, conceded that the Union did not specifically request an apology as part of the remedy.
also conceded that if the Personnel Committee's April 1st letter to Glaves
constituted a reprimand,
that would be treating him "fairly", i.e., the consequences of violating the County's work
have been administered "fairly and equally", as requested in the grievance. As noted above,
1st letter chastising Glaves for engaging in such conduct and ordering him
to refrain from engaging
in it in the future and to apologize cannot reasonably be construed as anything other than a
reprimand. Hence, the relief sought in the grievance has already been granted.
Finally, it is worthwhile to note that it would seem, as the Union posits, that had the
Committee met with the Union and Grievant and discussed the matter, it would not have
point. Beyond that note and enforcing Article VII, Section B, the Arbitrator has no authority
case to order the County to comply with the grievance procedures in the future.
Based upon the foregoing, the evidence, and the arguments of the parties, the
issues the following
The grievance and the relief sought in the grievance, having already been granted by
County, the grievance is dismissed at this point as moot.
Dated at Madison, Wisconsin this 3rd day of February, 2000.
David E. Shaw, Arbitrator