BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CALUMET COUNTY HIGHWAY AND PARK
LOCAL 1362, AFSCME, AFL-CIO
CALUMET COUNTY (HIGHWAY
Ms. Helen Isferding, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1207 Main Avenue, Sheboygan, Wisconsin 53083, appearing on
behalf of the Union.
Attorney Melody Buchinger, Corporation Counsel, Calumet
County, Courthouse, 206 Court Street, Chilton, Wisconsin 53014-1198, appearing on behalf
of the County.
Calumet County Highway and Park Employees Local 1362, AFSCME, AFL-CIO,
Union, and Calumet County, hereafter County or Employer, are parties to a collective
agreement that provides for the final and binding arbitration of grievances arising thereunder.
Union requested, and the County concurred, in the appointment of a Commission staff
resolve a pending grievance. The undersigned was so designated and an arbitration hearing
in Chilton, Wisconsin on April 19, 2000. The hearing was not transcribed. The record was
on April 25, 2000.
The County frames the issue as follows:
Did the County violate the collective bargaining agreement
it terminated Chris Fritsch?
If so, what is the appropriate remedy?
The Union frames the issue as follows:
Did the Employer terminate Chris Fritsch for just cause?
If not, what is the appropriate remedy?
The undersigned adopts the County's statement of the issue.
In July of 1995, Chris Fritsch, the Grievant, was hired as a Mechanic in the Highway
Department. At all times material hereto, the Grievant was required to maintain a CDL.
On September 29, 1999, during a random test, the Grievant was found to have a
alcohol test. Consistent with its understanding of Federal Motor Carrier Rules, the County
immediately suspended the Grievant from his position.
By a letter dated September 30, 1999, County Highway Commissioner Michael
advised the Grievant, inter alia, of the following:
. . .
In addition, prior to returning to work in a safety-sensitive
position you must be evaluated by
a substance abuse professional. Arrangements for you to attend an assessment on Friday,
1, 1999 at 12:30 p.m. have been made. However, you need to confirm this appointment for
assessment by phone as soon as possible. . . .
This assessment is required under Section
382.605. You will remain off duty without pay
until this assessment is completed. In addition, should you return to work in the future, a
of that return is that you must have a repeat alcohol test that shows you have below a .02
alcohol prior to returning to duty. Arrangements for this test may be made after the
completed and the results are known.
Subsequently, the Grievant was assessed by the substance
by the County and a substance abuse professional selected by the Grievant. The two
differed. The County agreed that the Grievant could follow either assessment.
On October 12, 1999, the Grievant and Union representatives met with County
representatives to discuss the Grievant's employment status. On October 12, 1999, the
Commissioner issued a letter to the Grievant that states, inter alia,
. . .
You will be required to remain off duty, suspended without
until you have enrolled in
and started a treatment program of your choice as recommended in the assessment. You are
to notify the Personnel Manager with the date of your enrollment and the name of program
to use. You will then be placed on an authorized leave of absence and will be able to use
time you have available and any unpaid time necessary for you to complete the treatment
After completion of the treatment program you may return to
work. However, a condition
of that return is that you must have a repeat alcohol test that shows you have below a .02
alcohol prior to returning to duty.
. . .
This is a last chance agreement. This means any further
incidents of misconduct of any kind
will result in immediate termination. Refusal to comply with the treatment program of
alcohol tests will result in immediate termination.
During the week of October 25, 1999, the Grievant and
the County Personnel Manager had
a telephone conversation in which the Grievant was advised that, contrary to statements made
Highway Commissioner's letter of October 12, 1999, the Grievant could return to work prior
completing his treatment program. At that time, the Grievant was advised that he could
work after his first treatment session on October 28, 1999 if he received a work release from
counselor and passed a return to work alcohol test. Given these conditions, the earliest day
Grievant could return to work was Friday, October 29, 1999.
It is evident that the County Personnel Manager had an expectation that the Grievant
return to work on October 29, 1999. It is not evident, however, that the County Personnel
directed the Grievant to return to work on October 29, 1999. Nor is it evident that, during
telephone conversation, the County Personnel Manager directed the Grievant to take the
work alcohol test at any specific point in time.
On Friday, October 29, 1999, the Highway Commissioner
conversation with the
Grievant. During this conversation, the Highway Commissioner advised the Grievant that he
complied with all the requirements to return to work with the exception of the return to work
test. The Highway Commissioner told the Grievant that he should "get there quickly to do
testing." The Grievant did not make any response to this statement.
In a letter to the Grievant dated Monday, November 1, 1999, the County's Personnel
Manager confirmed her understanding of the telephone conversation that occurred during the
of October 25, 1999 and stated "You also have not, to my knowledge, obtained a breath
as required. You must do this immediately and return to work if it is negative." The
further advised that the County would attempt to reach the Grievant by telephone, but that if
County was unsuccessful in such attempts, the Grievant should contact the Highway
upon receipt of the letter.
On Tuesday, November 2, 1999, the Highway Commissioner made several telephone
to the Grievant's residence, but was not able to contact the Grievant. The purpose of the
calls was to advise the Grievant that the County had arranged for the Grievant to have a
work alcohol test conducted at a Chilton medical facility on November 3, 1999 at 8:00 a.m.
At approximately 7:10 a.m. on November 3, 1999, the Highway Commissioner
the Grievant at the Grievant's residence and had a conversation with the Grievant.
County Personnel Manager scheduled a meeting with the Grievant and Union representatives
purpose of evaluating the reasons why the Grievant had not shown up for the return to work
the County had scheduled for November 3, 1999.
This meeting was held on Friday, November 5, 1999. At this meeting, the Grievant
the County with a negative return to work alcohol test. This test had been performed on
November 5, 1999. At the end of this meeting, the Grievant was told that he was discharged
his County employment. The Highway Commissioner confirmed this discharge in a letter
November 10, 1999.
The Grievant's discharge was grieved. Upon denial of the grievance, the grievance
submitted to arbitration. Upon close of the County's case, the arbitrator issued a bench
the merits of the grievance. This bench decision on the merits is confirmed in the following:
The Highway Commissioner, after consulting with various County officials, made the
to discharge the Grievant. According to the Highway Commissioner, the Grievant engaged
misconduct by refusing to take the return to work alcohol test that had been scheduled for
3, 1999 without having a compelling reason for the refusal. In the Highway Commissioner's
this "misconduct" together with the Grievant's four prior disciplines provided the County
right to discharge the Grievant.
The Highway Commissioner recalls the following:
The County scheduled a return to work alcohol test for 8:00 a.m.
on November 3, 1999. On
November 2, 1999, the Highway Commissioner made at least five unsuccessful attempts to
the Grievant at the Grievant's residence. On November 3, 1999, the Highway Commissioner
telephoned the Grievant at 7:10 a.m. During the telephone conversation, the Highway
told the Grievant that he had "set-up" the return to work alcohol test for 8:00 a.m. at the
Medical Center in Chilton. The Grievant responded that he was not available at 8:00 a.m.
telephone conversation ended without any further comment from the Highway Commissioner.
As the testimony of the Highway Commissioner demonstrates,
the Highway Commissioner
did not direct the Grievant to take the return to work alcohol test at 8:00 a.m. Rather, the
Commissioner advised the Grievant that a return to work test had been "set-up" for 8:00
When the Grievant explained that he was not available to take the 8:00 a.m. test, the
Commissioner did not tell the Grievant that this explanation was not acceptable. The
Commissioner did not ask the Grievant if he had received the Personnel Manager's letter of
November 1, 1999. The Highway Commissioner did not question the Grievant as to why the
Grievant had not yet obtained a return to work alcohol test. Nor did the Highway
the Grievant any instruction with respect to the return to work alcohol test. Rather, the
Commissioner remained silent. By remaining silent, the Highway Commissioner provided
Grievant with a reasonable basis to believe that his explanation for not reporting for the
test had been accepted by the Highway Commissioner and that the Grievant retained the right
schedule his return to work alcohol test.
More importantly, however, the Grievant was provided with no more than fifty
of the scheduled test. At the time that the Grievant received this notice, he was not in work
and, thus, was not under the immediate control of the County. Moreover, the Grievant was
some twenty to thirty minutes away from the site of the scheduled test.
It was not reasonable for the Highway Commissioner to expect the Grievant to be
for a return to work alcohol test upon fifty minutes notice. Given the lack of reasonable
Grievant did not engage in misconduct when he did not make himself available to take the
work alcohol test that had been scheduled for 8:00 a.m. on November 3, 1999.
Article 7.01 of the parties' collective bargaining agreement provides the County with
to "discharge for proper cause." Inasmuch as the Grievant did not engage in
misconduct when he did not make himself available for the return to work alcohol test
that had been
scheduled for November 3, 1999 at 8:00 a.m., the Grievant's prior disciplinary record is
and the County does not have proper cause to discharge the Grievant. By discharging the
without proper cause, the County has violated Article 7.01 of the parties' collective
Based upon the record, and the arguments of the parties, the undersigned issues the
1. The County violated the collective bargaining agreement when
it terminated Chris Fritsch.
2. The remedy for this contract violation is
set forth in the parties' settlement agreement in the
matter of Case 108; No. 58564; MA-10995.
Dated at Madison, Wisconsin this 12th day of May, 2000.
Coleen A. Burns, Arbitrator