BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF WAUPUN
WAUPUN CITY EMPLOYEES UNION, LOCAL 1112,
(Chuck Landaal Grievance)
Mr. Lee Gierke, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box 2236, Fond du Lac, Wisconsin 54936-2236, on behalf of the
von Briesen, Purtell and Roper, S.C. by Attorney James R.
Korom, 411 East Wisconsin Avenue, Suite 700, Milwaukee, Wisconsin 53202-
4470, on behalf of the City.
According to the terms of the 1998-2000 collective bargaining agreement between the
of Waupun (City) and Waupun City Employees Union, Local 1112, AFSCME, AFL-CIO
the parties requested that the Wisconsin Employment Relations Commission designate a
its staff to hear and resolve a dispute between them regarding the discipline of employe
Landaal. The Commission designated Sharon A. Gallagher to hear and resolve the dispute.
hearing was held on May 25, 2000, at Waupun, Wisconsin. No stenographic transcript of
proceedings was made. At the hearing, the parties agreed that they would waive the
Article XII, Section 12.05, requiring the undersigned to issue her written award within ten
of the last meeting regarding this case. The parties also agreed to submit their post hearing
July 14, 2000, which the undersigned would exchange for them. The parties reserved the
right to file
reply briefs in this case. They filed their reply briefs by August 18, 2000, which the
exchanged for them.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issues should be determined in this case:
Did the City of Waupun violate the collective bargaining
agreement with AFSCME Local
1112 when it suspended employe Chuck Landaal for ten (10) days for activities which took
January 7, 2000? If so, what is the appropriate remedy?
FUNCTIONS OF MANAGEMENT
3.01 Except as hereafter provided, the
management of the work and the direction of the
working forces, including, but not limited to, the right to hire, assign work and duties,
promote, demote, suspend or discharge or otherwise discipline for proper cause, lay off or
from duty, to subcontract work, and the rights to determine the Table of Organization, the
of employees to be assigned to any job classification and the job classifications needed to
Employer's public jurisdiction are vested exclusively in the Employer.
. . .
RULES AND REGULATIONS
4.01 The Employer shall have the right
to adopt and publish rules; such rules, and
amendments thereof, shall be submitted to the Union for its consideration and suggested
prior to adoption.
4.02 Provided no action is taken by the
Union to amend or alter said rules within ten (10)
days of written submission to the Local Union President, they shall become effective on the
(10th) day of submission to the Union. In the
event of a dispute as to such proposed rules or regulations, the
dispute shall be referred to the
grievance procedure for settlement and shall be initiated at Step 2 of said grievance
11.01 The following disciplinary
procedure is intended as a legitimate management device
to inform employees of work habits, etc., which are not consistent with the aims of the
public function, and thereby to correct those deficiencies.
11.02 Any employee may be demoted,
suspended, or discharged or otherwise disciplined for
just cause. The sequence of disciplinary action shall be oral reprimands, written reprimands,
suspension, demotion, and discharge. A written reprimand sustained in the grievance
not contested shall be considered a valid warning. No valid warning shall be considered
longer than a twelve (12) month period.
11.03 The above sequence of disciplinary action shall not
in cases which are cause for
immediate suspension or discharge, such as theft of personal or public property, drinking on
being drunk on the job, or illegal use and/or possession of a controlled substance.
11.04 Any discharged, or suspended employee, may appeal
such action through the
grievance procedure and shall initiate grievance action by immediate recourse to Step 3
(10) days of notice of discharge.
11.05 Suspension shall not be for less than two (2) days, but
for serious offenses or repeated
violations suspension may be more severe. No suspension shall exceed thirty (30) calendar
11.06 Notice of discharge or suspension shall be in writing and
a copy shall be provided the
employee and the Union.
The Grievant has been employed as a mechanic by the City for the past 12 years. It
undisputed that prior to January 7, 2000, the Grievant had never received any warnings or
discipline from the Employer. It is also undisputed that the Grievant's work has been very
his 12 year tenure.
On January 7, 2000, the head of the Public Works Department, Scott Hermsen,
meeting of certain employes of the City's Department of Public Works at the City garage to
the effects of City employe Vern Hagen's up-coming retirement. Present at this meeting
Hermsen, Superintendent of Public Works, Bill Nanney, and employes Landaal, Hagen and
The meeting started shortly before 2:00 p.m. Hermsen opened the meeting by making
regarding Hagen's job duties which included welding. Hermsen also made other statements
Landaal's duties as a mechanic. Landaal disagreed with Hermsen's description and stated
the effect that if that's what Hermsen thought he (Landaal) did for the City, Hermsen was
the City garage enough. Hermsen responded to Landaal that in construction season Landaal
construction work. Hermsen then laid out a description of how he wished to distribute
duties after Hagen's retirement indicating that some of these duties would go to Landaal.
then spoke up again, indicating that the City was not going to hire anyone to do Hagen's
work but that it intended to push this work off on Landaal.
According to Hermsen, Landaal said that he was going to get screwed by the City
of these work assignments and that every time Hermsen came around someone got "fucked."
Hermsen responded to Landaal's statement by asking Landaal why do you (employes) get so
defensive; when management tries to talk to you (employes), management is "fucked up" and
don't talk to you, management is still "fucked up." At this point, Hermsen told Landaal he
of line and to punch out and go home. 2/
1/ Lloyd Dykstra stated that Landaal did not
use the "f" word -- that Hermsen used the word "fuck."
Superintendent Nanney also stated he did not believe that Landaal swore first. Rather,
Nanney stated herein that
Hermsen swore first, but that he could not recall the incident well enough to be certain as of
the date of the instant
hearing. Landaal stated that Hermsen used the word "fuck" first and that he (Landaal) only
used the word "fuck"
when he returned to get his "fucking coat" after he left the building at Hermsen's
2/ Landaal stated that he did not hear Hermsen
tell him to punch out at this time; that Hermsen only told him
to leave. Dykstra and Nanney corroborated Hermsen on this point. At the hearing, Landaal
did not deny that
Hermsen could have told him to punch out, Landaal merely stated that he did not hear
Hermsen tell him to punch
out at this point.
Landaal asked for Hermsen's decision (to send him home) in writing and stated that
to see his Union Representative. Hermsen did not respond but walked past Landaal to the
took Landaal's timecard and punched it out and held open the lunchroom door and stated that
Landaal should leave the building. Landaal exited and followed Hermsen through the
Landaal again asked for a union steward and asked if he was fired. Hermsen then opened
door of the garage and held it for Landaal to exit. At this point, Landaal asked again for
decision is writing and stated that he wished to see his Union Representative. Hermsen did
respond to Landaal's questions but told Landaal to
leave. Landaal asked if he was fired, stated he wanted to have Hermsen's decision in
writing and to
see his Union Steward. Hermsen replied that Landaal was this close (indicating a one-half
between his index finger and his thumb) to being fired. 3/ Landaal exited the garage.
3/ Hermsen stated that he was in control and
that his tone of voice was conversational until he told Landaal
he was out of line and to punch out and go home. Landaal stated that both he and Hermsen
raised their voices
during the confrontation. Hermsen stated that Landaal
yelled at him during the confrontation in the lunchroom
and that Landaal also spoke in a sarcastic tone of voice. Landaal denied this. (Landaal is
corroborated by Lloyd
Dykstra on these points.)
At this point, Landaal realized how cold it was outside and that he did not have his
He decided he had to go back into the facility to get his jacket. Landaal re-entered the
stating "At least I can get my fucking coat," and went straight to the locker room where he
coat. At this point, Union Representative Dave Bresser, who had been out in the garage, but
the meeting, asked Landaal what was going on. Landaal responded that he did not know if
been fired, he simply knew that he had been sent home. Bresser and Landaal then spoke to
Superintendent Nanney and asked Nanney whether Landaal had been fired. Nanney said he
think so; he thought that Hermsen had simply sent Landaal home. Bresser said that was not
enough response and Bresser advised Landaal to stay at the facility until he received written
notification of the status of his employment from Hermsen. Landaal decided that he should
Bresser's instructions and stayed at the facility until quitting time at 3:00 p.m. even though
had punched him out earlier.
Hermsen admitted that he did not tell Landaal what would happen if Landaal did not
the building and did not warn Landaal that he would be suspended if he refused to leave the
Hermsen admitted that Landaal never refused to leave the building and that Landaal never
a direct order from him on January 7, 2000. Hermsen also admitted that he never told
direct Landaal to leave the building after Nanney told Hermsen later on the afternoon of
(at 2:10 p.m.) that Landaal had not left the building. Hermsen also stated that he never told
that he could not return to the facility to get his coat.
Hermsen stated that Landaal's requests for a steward were not unreasonable but he
Landaal should go home immediately in order to defuse the situation and so that he could get
the meeting. 4/ Hermsen stated that he did not believe he escalated the situation by
Landaal. Hermsen stated that the discipline that he issued Landaal was not based on
to leave the facility on January 7th, but rather was based upon two
statements Landaal had made on
January 7th. The first statement was to the effect that if this is what
Hermsen thought Landaal did for
the City, Hermsen was not around the City garage enough. The second statement was words
effect that Landaal felt he was getting work
pushed off on him, that he was getting screwed and that every time Hermsen came
around the garage
somebody got "fucked." Hermsen stated that these two statements were sufficient for
receive the discipline that he (Hermsen) meted out. Hermsen stated that in his opinion an
use of profanity to a supervisor in the presence of other staff constitutes insubordination.
stated that he used the "f" word because Landaal had used it previously, that he was quoting
4/ The meeting of January
7th never resumed.
January 7th was a Friday. Landaal reported to work the
following the Monday as usual, as
he had received no communication to the contrary. After his arrival at work, Hermsen
to Hermsen's office at City Hall. Landaal went there with two Union Stewards, Dave
Todd Frederickson. At this time, Hermsen requested that Landaal write out a statement
what he felt had occurred on January 7th. Hermsen then took statements
from everyone who had
witnessed the events of January 7th. Hermsen then suspended Landaal with
pay for two days while
he investigated the incident of January 7th. Hermsen also contacted
Attorney Korom and requested
arbitration awards regarding insubordination. Korom sent Hermsen three such awards.
On January 11th, Hermsen called Landaal into his office and offered
him two options contained
in a DISCIPLINARY AGREEMENT document as follows:
. . .
Based on the events of January 7, 2000 we
agree to resolve this issue as noted below:
______ Option 1 Three (3) day
suspension without pay, January 10, 11, 12, 2000
Post attached apology on
bulletin board at Public Works Garage
No grievance will be filed
regarding this issue
______ Option 2 Three (3) day
suspension without pay, January 12, 13, 14, 2000
Post attached apology on
bulletin board at Public Works Garage
No grievance will be filed
regarding this issue
On behalf of the Union
Landaal was also offered the option of taking a ten-day suspension if he chose not to
take options one
or two above. Landaal chose to consider the matter and stated that he and the Union would
On January 13, 2000, Landaal and the Union delivered a letter to Hermsen indicating
Union and Landaal would accept "no form of disciplinary action against (Landaal)" stating
was "no just cause for such discipline." This letter also further advised Hermsen that the
would grieve Landaal's suspension. By letter dated January 13, 2000, Hermsen notified
"based on my investigation of the above incident (January 7, 2000) you are suspended for ten
without pay." On January 14, 2000, Hermsen advised Landaal of the start date of the
The parties stipulated that the grievance was properly processed and through all of its steps
no procedural issues are before the Arbitrator.
POSITIONS OF THE PARTIES
The City contended that the Grievant was ordered to punch out and go home and that
refused that direct order twice, forcing Hermsen to punch the Grievant out and escort him
out of the
building. In addition, the City urged that the record clearly showed that the Grievant had
the profanity directed toward his supervisor, Hermsen, in front of other employes. These
by the Grievant constituted insubordination in the City's view. The City also noted that
never lost his temper.
The City contended that the Union's attempt to prove disparate treatment should fail.
the evidence of past disciplinary actions showed that open confrontation with supervisors has
minor disciplines. The Grievant's open refusal to obey Hermsen's orders, his return to the
for his jacket and his additional statements using profanity upon his return, make the
much worse than cases which have occurred regarding other employes in the past. In any
City noted that there has never been an incident similar to the instant one -- where an
been insubordinate and used profanity toward a supervisor.
The City cited several cases in support of its arguments in this case. The City also
that any reduction in the penalty would erode the seriousness of the Grievant's conduct and
odds with other arbitrators' decisions in similar cases. The City noted that
no mitigating circumstances were proved here by the Union and that the Grievant failed
to show any
remorse which might call for a lessening of the penalty. In addition, the City noted that
careful and reasoned in his approach to the discipline meted out in this case, unlike other
employers have been shown to be arbitrary or random in their assessment of penalties.
The City argued that no Weingarten violation occurred in this case because the
was not denied Union representation during any investigatory interview held by the City. In
regard, the City noted that on January 7th, the Grievant was not asked any
questions but that discipline
was given immediately by Hermsen. Article 12.07, in the City's view, is more restrictive
Weingarten because the contract states that employes are to receive Union representation
there is "discussion for the record" of their conduct. In addition, the City noted that Section
allows for the suspension of employes in cases where cause for immediate suspension exists.
contractual list of activities for which an employe may be suspended is, in the City's view,
illustrative and not exclusive, making the fact that the parties failed to list insubordination in
In the City's view, the Grievant's actions, his attempt to denigrate the chain of
the City, his disrespect for his department head in front of other employes should not be
the grievance should be denied in its entirety.
The Union argued that insubordination, if it means anything at all, constitutes a
failure to perform a valid work order. Under certain circumstances, objectionable or abusive
language and behavior towards a supervisor may also constitute insubordination. The Union
that Landaal engaged in none of these activities on January 7th. In this
regard, the Union argued that
the Grievant did not refuse to leave the facility after he was ordered to do so by Hermsen.
the Grievant merely asked for Union representation and that Hermsen put his actions in
that Landaal would have a record of the action taken against him. The Union argued that
requests by the Grievant were not unreasonable.
In addition, the Grievant had to return for his jacket, as it was January and it was too
him to return home without it. Thereafter, when Landaal re-entered the facility, he was told
leave by his Union Steward and his immediate supervisor, Bill Nanney, did not contradict the
Steward's instruction to the Grievant not to leave the facility. As the Grievant did not know
was risking suspension by not leaving the facility and because Hermsen knew from his later
conversation with Nanney that the Grievant never left the facility, the fact that the Grievant
until quitting time on January 7th should not be held against the Grievant,
as it was Hermsen's
responsibility to make clear that the Grievant was not allowed to stay at the facility. And
never did this.
The Union noted that the investigation by Hermsen, who was witness, prosecutor and
in the case, was patently unfair. Hermsen decided to suspend Landaal because Landaal did
but he failed to take into consideration the fact the Union Steward had ordered Landaal to
the facility and that that order was never countermanded by Nanney or Hermsen.
The order to leave given by Hermsen was not reasonably related to Landaal's job.
the Union contended, Hermsen should have ordered Landaal back to work after Landaal
statements during the January 7th meeting. Hermsen's order was not a
valid work order and did not
serve any legitimate business purpose. In any event, the Union asserted that Landaal's
the workplace was not a deterrent to work.
The Union argued that Landaal was not forewarned of the consequences of his
January 7th. Indeed, Hermsen admitted that he failed to tell Landaal that he
would be suspended if
he refused to leave the building on January 7th. In addition, the Union
argued that Landaal did not
use profanity first; that the City had the burden of proof on this point and that it failed to
Landaal had used profanity before Hermsen. The comment, which Landaal made regarding
was not directed toward any supervisor. The Union argued that the Arbitrator should not
testimony of Nanney as the record clearly showed that he was under great pressure from both
regarding what he heard and perceived on January 7th. The Union further
noted that Lloyd Dykstra
unhesitatingly corroborated Landaal's version of the events on January 7th.
The Union also noted that
Lloyd Dykstra testified that Hermsen swore first. Finally, the Union noted that the
history showed that he was a conscientious employe with a spotless work record. The fact
employes use profanity in the shop is not remarkable and any profanity that Landaal used
directed at a supervisor and was within the normal level of shoptalk/profanity used at the
The Union argued that Section 11.03 lists infractions which allow the City to apply
non-progressive discipline. On this point, however, the Union urged that the Grievant's
actions even if
one were to credit Hermsen's version of the facts, do not rise to the level of such seriousness
call for non-progressive discipline under the contract. In the three prior cases of
the City, the Union noted that progressive discipline was applied to each of those cases and
of them was more serious than the situation that the Grievant found himself in on January
Union noted that regarding a fight between two summer employes, the City merely gave both
workers an oral warning. In regard to the Bresser discipline, his oral warning was later
his file. Therefore, the Union urged that Landaal had been treated disparately and had been
more harshly than other employes who had engaged in more serious misconduct in the past.
Section 12.07 requires that employes get Union representation upon request. The fact
Landaal was a steward does not mean that he should have no representation when his
being called into question as they were on January 7th. Indeed, the Union
noted that the contract does
not exclude stewards from the right to Union representation. The Union
observed that at the instant hearing, Hermsen admitted that discussion about Landaal's
affecting his status as an employe on the record had occurred on January
7th. The Union, therefore,
asked that all references to the discipline of January 7th be expunged from
Landaal's work record, that
Landaal receive back pay and full benefits for the period of the ten day suspension including
potential overtime he might have worked during the period that he was suspended.
The City observed that the Union's initial brief contained arguments which are
with their theory of the case, as well as misstatements of fact which raised collateral
distract from the issues in this case. In this regard, the City noted that Hermsen did not
Friday that Landaal had refused to leave the facility. The City asserted that Hermsen only
fact on the following Monday. In regard to the Weingarten issues raised by the Union as
the issue regarding Article 12.07, the City argued that these arguments were a "red herring."
the supervisor asked no questions of the Grievant; he merely directed the Grievant to leave
and no discussion of the Grievant's work or employment status was held on January 7, 2000.
Therefore, in the City's view, neither the contract (Section 12.07) nor the principles of
are involved in this case. In addition, the City noted that the Grievant never asked for a
after he was directed to leave the facility by Hermsen.
The Union challenged the appropriateness of the investigation and the City defended
follows. The City asserted that Hermsen considered all relevant facts during his investigation
Hermsen did not hold Landaal responsible for Bresser's advice to stay at work. The City
that it is not inherently unfair for a supervisor to conduct an investigation into a situation in
supervisor was involved, as the Union claimed. As Hermsen was careful to treat Landaal
as it would create much greater cost to the employer if the immediate supervisor cannot
investigation, the City urged that this argument by the Union should fail.
The Union argued that Landaal did not know the consequences of his not immediately
the facility because Hermsen did not advise him of these. On this point, the City argued that
employer gives an employe a direct order to punch out, "failure to promptly obey can lead to
sort disciplinary action." If Landaal did not know his job was in jeopardy, the City queried,
he ask Hermsen if he was fired before leaving the facility. The City asserted that Landaal
to the building and in Hermsen's presence began to swear "and speak in a confrontational
regarding picking up his jacket. This, the City urged, showed "an intentional act of
disregard of the Employer's legitimate interests in discipline and its supervisory authority."
Therefore, the City believed that the Union's arguments were without merit.
In regard to whether Hermsen or Landaal swore first, the City noted that Hermsen is
a high-ranking supervisor; that shoptalk is not something that he normally hears and the City,
implied that a different standard regarding the use of shoptalk and swearing should apply to
In any event, in the City's view, the record evidence demonstrated that Landaal swore first.
the Grievant did not swear first, Landaal's statements showed a disregard and contempt for
and Landaal knew that he was risking his job by making these statements and acting the way
The real issue in this case, in the City's view, is the proper penalty to be assessed.
urged that it has met its burden of proof in this case but that the Union has not shown that
otherwise violated the contract. Thus, the Union failed to meet its burden of proof here.
City noted that in the circumstances of this case, the Employer must have the right to send
home to de-escalate an otherwise volatile situation and that Landaal's lack of remorse in this
quite significant and should be taken into account.
The Union argued that the cases cited by the City in its initial brief are factually
from the instant case. In regard to the charges of disrespect and profanity, the Union noted
Bryan Foods, Inc., 109 LA 633 (Baroni, 11/97) involved an employe who engaged in much
serious conduct than Landaal -- the employe in Bryan cursed his supervisor and aggressively
the supervisor, using profanity to embarrass, ridicule and degrade the supervisor before other
employes. The Union also noted that in Bryan, the Arbitrator recognized the mitigating
frustration on the part of the employe as a reason to decrease the penalty assessed by the
In regard to Will-Son Corp., 108 LA 920 (Nadelback, 5/97), the Union observed that the
employe there cursed his supervisor in public and had a prior record of being warned and
as well as suspended, for using profanity, unlike the instant case. Concerning Office of
Retardation, 113 LA 312 (Gross, 8/99), the Union noted that the employe in that case
profanity toward a supervisor in the presence of members of the public and that the employe
disciplined three times previously for using profanity. Similarly, regarding Tri-County
Co., 107 LA 577 (House, 10/96), the employe used provocative, contemptuous and extreme
profanity toward a supervisor which was not present in this case. Here, the City has
mischaracterized Landaal's conduct and statements, in the Union's view, and attempted to
cited cases to the instant situation when it would be unfair to do so. Finally, in regard to
Rubber Co., 97 LA 750 (Hewitt, 6/91) and Gaylord Container Corp., 107 LA 431 (Henner,
9/96), the Union observed that in these cases, the employes engaged in misconduct which
egregious than Landaal's. In addition, the Union asserted that Landaal's refusal to apologize
instant case cannot be used to determine just cause. What Landaal stated was essentially
not directed at any person, and therefore, it did not rise to the level of abusive language
Regarding the insubordination charges, the Union asserted that the cases cited by the
distinguishable. Here, Landaal was not insubordinate. It is not unreasonable for an
employe to want
to return to the facility to get this coat in January in Wisconsin and it is not unreasonable for
employe to ask for his steward when he is being essentially hustled out of the facility without
statement regarding his employment status. In this case, Article XII, Section 12.07, was
violated by the Employer's refusal to grant Landaal's request for a steward. The Union
noted in this
regard that Hermsen understood Landaal's requests and refused to provide a steward
In all the circumstances of this case, the Union urged that there was no just cause for the
given to Landaal and sought that the grievance be sustained; that the disciplinary notice and
references thereto be withdrawn from Landaal's file and that Landaal be made whole.
Article III specifically provides that there must be "proper cause" for the suspension
employes. Although Article IV indicates that the City has the right to adopt and publish
Employer failed to submit any rules that were relevant to this matter. In addition, Article
11.02, provides that "any employee may be demoted, suspended, or discharged or otherwise
disciplined for just cause." This section also specifically states that the sequence for
action shall be a progressive one--oral reprimands, written reprimands, suspension, demotion
discharge. Section 11.03 indicates that the normal progressive disciplinary sequence "shall
in cases which are cause for immediate suspension or discharge, such as theft of personal or
property, drinking on the job, being drunk on the job, or illegal use and/or possession of a
substance." Insubordination and the use of profanity are not examples listed in Section 11.03
The initial question that must be answered in this case is whether Landaal refused a
order from Hermsen. Landaal stated that he did not hear Hermsen tell him to punch out --
heard Hermsen tell him to leave. It is clear that emotions ran high between Landaal and
January 7th and it is understandable that Landaal may have been confused
and upset by Hermsen's
failure to tell him the meaning of Hermsen's statements and actions towards him. In any
Landaal hesitated to act or did not act as quickly as Hermsen wished, Hermsen became very
and took immediate action by punching out Landaal and hustling him out of the building.
to Supervisor Nanney, the entire confrontation between Landaal and Hermsen took less than
It is significant that at the instant hearing, Hermsen stated that Landaal never refused
the garage and that he (Landaal) never disobeyed a direct order from Hermsen. It is also
that Hermsen stated herein that the discipline he issued Landaal was not based on Landaal's
at the facility on January 7th, but rather was based upon the two statements
that Landaal had made
-- that Hermsen did not know what Landaal did for the employer and that every time
around the garage, someone got fucked. Therefore, it is not
critical to the outcome of this case whether Landaal left the facility or not, as his
at the facility was not considered a refusal to follow a work order by Hermsen. 5/
5/ Landaal reasonably returned for his jacket
and was going to leave again when Bresser stopped him.
Bresser asked Nanney if Landaal had been fired and Nanney responded that he was not sure
but he thought the
Hermsen had only sent Landaal home. Bresser then advised Landaal not to leave until
Hermsen's action against
him had been received in writing. It is significant that at this point, Nanney did not direct
Landaal to leave the
facility. Indeed, at 2:10 p.m. that day, Nanney advised Hermsen that Landaal had stayed at
the garage after
Hermsen had ordered him to leave. Nevertheless, Hermsen did not direct Nanney to tell
Landaal to leave the
facility. At the instant hearing, Hermsen stated that he did not hold Bresser's advice to stay
in the garage against
Landaal in disciplining Landaal. Therefore, even if Landaal's actions in failing to leave the
insubordination, as both Nanney and Hermsen condoned Landaal's actions in following
Bresser's advice and
staying at the garage on January 7th, no finding of insubordination on
this basis can be made.
It is axiomatic in labor relations that if a supervisor tells an employe to leave, the
should leave and that employes have no right to question or request specifics regarding an
leave. Thus, contrary to the Union's claims herein, I believe that employes know that the
"leave" means that the employe should punch out and leave the facility. In this case,
created when the union steward essentially countermanded Hermsen's order that Landaal
Apparently, Bresser was under the mistaken impression that Landaal should receive written
of a suspension or discharge (pursuant to Section 11.06) prior to leaving the premises.
Section 11.06 does not require written notification of an employe's suspension or discharge
by a date
certain so that a reasonable time period would be implied. Therefore, the Union's insistence
Landaal remain at the facility on January 7th was erroneous.
Having found that Landaal was not insubordinate in leaving (slowly) and then
returning to the
garage on January 7th, the question arises whether the language Landaal
used on January 7th rose to
the level of insubordination. The parties have hotly contested the question whether Hermsen
Landaal first used profanity on January 7, 2000. Even assuming that Hermsen's version of
which occurred on January 7th is credited in its entirety 6/, I do not find
that Landaal's language rose
to the level of insubordination on January 7th.
6/ During his examination and
cross-examination, I note that Hermsen refused to characterize his own tone
of voice as angry or upset and he denied losing his temper. I find this incredible. I also
note that during his
examination and cross-examination, Landaal appeared to be a relatively steady and
Nonetheless, I have, for the sake of argument, credited all of Hermsen's version of what
occurred on January 7th.
In this regard, I note that the Union offered evidence (which remained
"shoptalk" including profanity was used at the City garage on a regular basis. In my view, a
standard regarding the use of "shoptalk" is unnecessary in Hermsen's presence. In this
regard, I note
that Hermsen responded in a confrontational manner to Landaal's statement and that Hermsen
used profanity in response to Landaal. The fact that Landaal stated that he was going to get
by the City and that every time Hermsen came around the City garage, someone got
although not the kind of polite exchange which occurs in an office setting, is one which
occur in a City garage.
In regard to the comment which Landaal admitted when he
returned to the lunchroom to get
his coat, I do not find Landaal's comment to be confrontational as the City claimed.
for his jacket was not an intentional act of disrespect or disregard for Hermsen's authority,
Employer claimed. Rather, Landaal was reasonably responding to January weather in
when he felt it was important for him to return for jacket.
The City cited a number of cases for the proposition that Landaal was properly
this case for insubordination and the use of profanity. I find those cases to be inapposite.
I note that several cases cited by the Employer were factually distinguishable from the instant
In Buttrey Food and Drug Co., 110 LA 641 (Prayzich, 5/98), an employe there was
for dishonesty and for failing to tell his employer about the terms of his release on bail.
That case had
nothing to do with insubordination. Concerning both Office of Mental Retardation, 113 LA
(Gross, 8/99) and Will-Son Corp., 108 LA 920 (Nadelbach, 5/97), these cases concerned
employers who had rules against the use of profanity. In the instant case, the City has no
prohibiting profanity. In regard to Chardon Rubber Co., 97 LA 750 (Hewitt, 6/91), I note
the grievant reported to work under the influence of alcohol, that he refused to perform a job
within his job description, that he told the foreman that it was "not his fucking job" and that
grievant stated that he would "get the foreman's ass for this." When the foreman ordered
punch out, the grievant refused to leave the premises. The grievant later repeated his refusal
out and go home in the presence of the union steward and the department manager, at which
his foreman threatened to call the police and the grievant left the facility. In my view, this
entirely distinguishable from the one before me.
In addition, Vandekamp's Inc., 111 LA 180 (DiLauro, 5/98), concerned a grievant
essentially threatened his supervisor with bodily harm. The supervisor took the grievant's
as a threat and asked if the grievant had intended to threaten him. The grievant remained
supervisor then stated that he interpreted the remark as a threat and ordered the grievant to
out. The grievant said "I ain't going nowhere." The supervisor again ordered the grievant
and he refused. The grievant was then escorted out of the facility. In these circumstances,
Arbitrator felt a suspension was warranted. This case is not applicable here.
Concerning the language used by Landaal, the City cited Gaylord Container
Corporation, 107 LA 431 (Henner, 9/96) and Tri-County Beverage, 107 LA 577 (House,
10/96). In Gaylord, the Arbitrator found that use of the term "fuck you" directed at a
(after the grievant had been suspended) was a breach of decorum but did not rise to the level
insubordination or outrageous conduct. In Tri-County Beverage, the grievant used the words
"fuck you," "bullshit" and "get the fuck out of my face" toward a supervisor. Nonetheless,
Arbitrator stated that every vulgarity is not per se punishable, but found that the
was provoking and showed contempt of his supervisor such that the grievant should be given
a 60-day suspension. In Bryan Foods, Inc., 109 LA 633 (Baroni, 11/97), the Arbitrator did
recount the profanity used by the grievant, although he did state that such profanity was used
embarrass, ridicule and degrade the supervisor in the presence of other employes, finding
grievant should be suspended for his conduct. In sum, I have not found the cases cited by
to be particularly helpful in determining the outcome of this case, as they are either factually
distinguishable or they involve unknown profanity or worse profanity and conduct than was
in by Landaal even according to Hermsen's version of the events of January
The Union has argued that the investigation of this case was improper. I disagree.
regard, I agree with the City's assertion that a supervisor who is personally involved in an
must be allowed to attempt to investigate the incident when the employer is unwilling to
additional resources for more professional assistance in the matter. The Union also argued
Landaal was disparately treated when this situation was compared with others that have
the past. In this regard, I note that none of the situations recounted involved employes
disrespectful statements to supervisors in front of other employes.
Thus, what is left in this case is whether the profanity Hermsen claimed Landaal
was sufficient to constitute insubordination. Here, the Employer could have made a work
prohibiting profanity in the work place. No such rule existed. In fact, evidence was placed
record in this case to show that employes engaged in profanity at the work place on a regular
in front of supervisors. Landaal's statements were certainly disrespectful. And they were
front of other employes which made them worse. However, Landaal's statements did not
a threat or a personal attack on Hermsen. Rather, Landaal's comments related to Hermsen's
A ten-day suspension for engaging in disrespectful public commentary toward a
which neither threatens the supervisor nor is a personal attack upon the supervisor is
this regard, I note that the evidence showed that no employe had ever been suspended for
a supervisor in a disrespectful manner. Indeed, Section 11.03 fails to mention profanity or
disrespecting a supervisor as cause for immediate suspension or discharge. Therefore, it
been reasonable and appropriate that Landaal, who has never before been disciplined by the
should receive an oral warning for his comments to Hermsen on January 7, 2000.
On the basis of the above analysis and the relevant evidence and argument herein, I
The City of Waupan violated the collective bargaining agreement when it suspended
Landaal for ten days for activities which took place on January 7, 2000. The City shall
make Landaal whole for his loss of pay and benefits 7/ for the period of the ten day
Landaal and expunge any reference thereto from his record.
7/ The Union argued that Landaal should be
paid for overtime he missed during the period of his suspension.
I disagree. The Union proffered no evidence to show that any overtime occurred to which
Landaal was entitled
during the period of Landaal's suspension. In any event, overtime payments would not be a
normal outgrowth of
a make whole remedy without such evidence.
Dated at Oshkosh, this 20th day of September, 2000.
Sharon A. Gallagher, Arbitrator