BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LABOR ASSOCIATION OF WISCONSIN, LOCAL
ST. CROIX COUNTY
Mr. Thomas A. Bauer, Labor Consultant, Labor
Association of Wisconsin, Inc., 206 South
Arlington Street, Appleton, Wisconsin 54915, appearing on behalf of Labor Association of
Wisconsin, Local 108, referred to below as the Union, or as the Association.
Mr. Brian K. Oppeneer,
Weld, Riley, Prenn & Ricci, S.C., Attorneys at Law, 3624 Oakwood
Parkway, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of St.
County, referred to below as the County, or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance filed on behalf of Richard Meyer, who is
below as the Grievant. The Commission appointed Richard B. McLaughlin, a member of its
Hearing on the matter was held on August 17, 2000, in Hudson, Wisconsin. No transcript
of that hearing. The parties filed briefs and a reply brief or a waiver of a reply brief by
The parties stipulated the following issues for decision:
Did the County have just cause to suspend the Grievant for
day on January 10, 2000?
If not, what is the appropriate remedy?
ARTICLE 3 MANAGEMENT RIGHTS
Section 1: The County possesses the sole
right to operate County government and all
management rights repose in it. The County agrees that in exercising any of these rights it
violate any provisions of this Agreement. These rights include, but are not limited to, the
1. To direct all operations of
2. To establish reasonable work rules, providing that
same are distributed to each member of the
bargaining unit at least thirty (30) days prior to implementation.
. . .
4. To suspend, discharge, or take other disciplinary
action against employees for just cause as
. . .
Section 1: No employee covered by this Agreement shall be
disciplined without just cause. (The
question as to what conduct constitutes "just cause" is a proper subject for the grievance and
arbitration provisions of this Agreement.)
The grievance challenges a one-day suspension. The letter of suspension is headed
Conduct", and was issued to the Grievant by Captain Bob Klanderman. The letter states:
On Monday, January 3, 2000 a medical dispatch was given out of
a male, unconscious, not
breathing, along with the location. Dispatch was giving CPR instructions over the phone.
deputies were responding along with you . . . One other deputy had arrived. You . . .
were 10-60 (in area) then went 10-23 (at the scene). When in fact you were NOT at the
did arrive approx. 2 minutes later. However, by stating you were there, this caused the
that was coming to slow and assume you were on scene. Which was not correct. Giving an
to the dispatcher, when you are not on scene is improper and unacceptable as a police
Giving an on scene in a medical incident and not being there is also improper and
possibly life threat(en)ing. Therefore, you are suspended without pay for one day. . . .
The Grievant responded to this letter by filing a grievance, dated January 9, 2000
(references to dates
are to 2000, unless otherwise noted).
The grievance form includes the following under the heading "Facts":
. . .
3. That on January 9, 2000, the Employer issued a
letter of suspension to the Grievant, effective
January 10, 2000, alleging that the Grievant allegedly g(a)ve an "on scene" in a medical
incident and not being on the scene.
4. That the allegation is false, and erroneous.
. . .
6. That the Employer actions violated the terms and
conditions of the collective bargaining
agreement . . . in that the actions of the Employer lacked just cause, and were . . .
unreasonable, arbitrary and capricious.
. . .
Sheriff Dennis D. Hillstead responded to the grievance in a letter, dated January 24,
The above mentioned grievance is denied.
At issue is (the Grievant's) claim that the
employer did not have just cause to suspend him for
one day without pay.
Grievant states that the reason the employer suspended him is
false and erroneous.
* Reports officially filed by Deputy Klatt and kept
by the St. Croix County Communication
Center show that in fact (the Grievant) was not on scene when he said he was. That in fact
he was still enroute and did not arrive on scene until 1 minute, 51 seconds after he said he
arrived. That misstatement by (the Grievant) caused Deputy Klatt to terminate his response
to the scene, having heard (the Grievant) go 10-23 on the radio. This could have resulted in
death or serious injury to the person calling for aid.
Grievant further states that the actions of the
Employer were unreasonably arbitrary and
* Employer has the right
under Article 3 Management Rights, Section 1, Paragraph D to
suspend, discharge or take other disciplinary actions against employees for just cause.
* In this case, (the Grievant's)
one-day suspension is justified based on his misconduct.
* (The Grievant's) one day
suspension is not unreasonable, arbitrary, nor is it capricious based
on his past conduct. Employee discipline is dispensed on an escalating scale. Its purpose is
to alter actions or conduct by the employee that is improper and/or unacceptable. (The
Grievant) has in his official file, seven verbal and written reprimands, along with two
suspensions. Based on his previous disciplinary record, one day off is justified.
The report by Deputy Klatt, which is referred to Hillstead's letter, is a memo dated
January 3 that
On Monday January 3, 2000 at 12:46pm., dispatch advised of a
male subject unconscious, not
breathing at 1332 CTH N. They were giving CPR instructions over the phone. I was in
and responded. Deputy Knudson was at STH 35 and CTH N and also responded.
Deputy Knudson arrived as I was on Cemetery Rd. approaching
the stop sign at CTH N. I asked
him if he was east or west of Cemetery Rd. and he replied east. I turned east and
discovered that I
should have turned west onto CTH N. As I was about to turn around in the middle of the
Grievant) advised that he was 10-60 and then 10-23. So I advised dispatch that I was going
on the call. I drove to the next intersection and turned around. As I was going west on
CTH N I saw
a set of red and blue lights, flashing, going east on CTH N. Just as I was about to go by the
at 1332 CTH N, (the Grievant) pulled into the driveway.
I called dispatch to confirm that (the
Grievant) had (gone) 10-23 at the scene and that I had not
misunderstood what he had said, and I was told he had (gone) 10-23 a couple of minutes
I have no further information.
The County has distributed to all employees a "Personnel Policies and Procedures
Handbook) that includes the following:
Section 2 Notification of Work Rules. Employees
are informed of County and departmental
work rules and standards of conduct and performance. The Personnel Handbook and union
also note rules of conduct and expected job performance. Since no work rules or
regulations can cover all possible areas of concern, employees are expected to conduct
in a manner that is consistent with reasonable and commonly-accepted standards of behavior.
. . .
The Sheriff's Department maintains a written document entitled "Policy and
includes the following:
D. Verification of emergency: It is the duty of
Officers on the scene and dispatchers to verify
the degree of emergency that exists and, if stabilized, to advise back-up units to modify the
response to a NON-emergency status. Examples include:
1. An Officer on the
scene determines the emergency is unfounded or no longer exists.
2. Accidents where the
injured are cared for and the scene is protected and under
3. Crime scenes where
first responders have the situation secured and stabilized and no
emergency assistance is required.
The documentation set forth above establishes the undisputed core of the grievance.
The balance of
the background is best set forth as an overview of witness testimony.
Humphrey has served as a Captain in the Jail Division of the Sheriff's Department
She noted that the bargaining unit of which the Grievant is a member includes Deputies and
Correctional Officers. As a Captain, Humphrey has the authority to discipline unit
Typically she consults with the Sheriff on disciplinary matters, particularly if a suspension is
In March of 1999, she imposed suspensions on two Correctional Officers. In that case, four
Correctional Officers were aware that a door to the jail facility had been left unlocked to
Correctional Officers to smoke outside the building. One of the four Correctional Officers
probationary employee. Of the non-probationary employees, one received a written
received a one-day suspension and one received a six-day suspension. She testified that she
a written reprimand to the Correctional Officer who reported the incident, but had not left
building. She issued a one-day suspension to an officer who left the building. That officer
received, prior to this incident, a written reprimand. She issued the six-day suspension to a
Correctional Officer whom she perceived to be the key player in the incident and who had
building most often. That officer did not have a prior history of discipline. She effectively
recommended the termination of the probationary employee involved in this incident. The
agree that the security breach prompting this discipline violated departmental and Department
Humphrey acknowledged she was unaware of any written departmental policy
use of 10-23 or 10-60 codes during a medical emergency.
Kathan has served as the County's Personnel Director since 1981. She testified that
Grievant did not have a clean disciplinary record at the time of the incident at issue here.
in the Grievant's personnel file is a six-day suspension, in June of 1995, for failing to file a
regarding a burglary. The Grievant grieved the suspension, and the parties ultimately
agreed, in May
of 1996, to the imposition of a three-day suspension.
Kathan also testified regarding the County's imposition, in the fall of 1993, of a
suspension. In that case a deputy had been observed driving his child to school in a county
Subsequently, the deputy's squad car had been observed, on two occasions, standing
his driveway. In each case, the deputy had reported, by radio, that he was 10-41, meaning
was on duty, and available for assignment by dispatch. Kathan stated that she was not aware
written departmental policy defining the use of the 10-41 code.
Klatt has served as a Patrol Deputy since June of 1997. He also serves as the
President of the
Association. He stated that the 10-60 code communicates that an officer is "in the area" of a
call. This could cover a deputy nearing a site known to have prompted a dispatch call, or a
reporting to a general area prompting a dispatch call, in which the specific site was not yet
The 10-23 code means "at the scene." To Klatt, "on the scene" means in the driveway of a
or at the scene of an accident prompting a dispatch call. To the extent an officer could
discretion with the use of the 10-23 code, Klatt stated he did not feel the 10-23 code could be
meaningfully used by an officer who was any more than ten to fifteen seconds from the site
the dispatch call. He further stated he was not familiar with any deputy who would use the
code when more than one minute from a site prompting a dispatch call. He noted his
reflected his "personal preference," and that he could not speak for all deputies on the point.
acknowledged the County maintains no written policy regarding the use of the 10-23 or
Klatt testified that his written statement, set forth above, accurately set forth the
January 3. He did add that he thought he would have arrived at the scene prior to the
Grievant, if he
had not broken off his response on hearing the Grievant report in the 10-23 code.
Klanderman testified that he understood the 10-23 code to connote that a deputy had
at the site of the call. Regarding a call to a residence, 10-23 means a deputy is entering the
or getting out of the squad. He acknowledged that the County does not maintain written
the use of "10" codes, but also noted his belief that deputies understood the 10-23 code
be used to designate anything other than "on scene." He was unaware of any other incident
a deputy had called in a 10-23 code, when not physically present at the site prompting the
Grievant's conduct was, in his opinion, sufficiently egregious to warrant a three-day
which he recommended to Hillstead. Hillstead, however, chose to impose a one-day
The County maintains audio-tapes recording all calls to and from the dispatch center.
addition to this, dispatchers maintain computer assisted (CAD) records to document calls and
responses. He did not review the audio-tape prior to recommending the suspension. He
the "10" codes are falling out of favor as technology advances. It is now easier for officers
freely to dispatchers without the use of code.
The Grievant has served the County as a Deputy for roughly eighteen years. On
he was at the sheriff's department when the emergency call came in. This put him roughly
miles from the source of the call. He set off, using lights and siren, to the scene. He was
travel roughly sixty-five miles per hour on Interstate 90, in spite of the slush and snow on
As he first left the interstate, the roads were in fairly good driving condition. He heard
in to the dispatch center that Knudson had arrived, and the stricken man was breathing, but
responsive. He was, at this point, roughly four miles from the residence. He knew the way,
residence he was heading for, so he called dispatch to advise them he was 10-60. He also
between him and the residence was a sharp curve, posted for twenty-five miles per hour.
were becoming increasingly icier as he continued toward the residence.
As he approached the sharp curve, the dispatcher called back to determine whether
Grievant was 10-60 or 10-23. He was, at this point, roughly three-tenths of a mile from the
residence. He did not want to repeat his 10-60 response, and he wanted to pay attention to
roads around him. Thus, he decided to report that he was 10-23. As he approached the
to the residence, he had difficulty breaking, and overshot the driveway by approximately one
feet. He had to bring the squad to a halt, back it up, and then enter the driveway. He
took perhaps thirty seconds. At no time until he entered the driveway did he see Klatt's
The County's CAD records are generated by the computer and by the dispatcher.
Operations Report for January 3 states that the call for assistance came to the dispatch center
12:46:26 p.m. The computer generated this record. The dispatcher entered the following in
"Narrative" section of the CAD Operations Report:
12:53:58 8849 ARRIVING
12:54:30 8830 ARRIVING
12:54:34 8841 IN SERVICE
12:56:21 8830 PULLING INTO
Cross Streets: KINNIC RD/CEMETERY
72 YOA MALE UNCONSCIOUS NOT
BREATHING. BEGAN BREATHING AT THE
TIME OF THE CALL
"8830" denotes the Grievant, "8841" denotes Klatt, and "8849" denotes Knudson. The
generates a section of the CAD Operations Report headed "Call Log", which states the
Date Time . . .
6501 DIS 1/3/2000
12:46:30 . . .
8841 DIS 1/3/2000
12:46:47 . . .
8830 DIS 1/3/2000
12:46:50 . . .
8849 DIS 1/3/2000
12:46:52 . . .
8849 ENR 1/3/2000
12:47:08 . . .
8841 ENR 1/3/2000
12:47:09 . . .
8830 ENR 1/3/2000
12:47:12 . . .
6501 ENR 1/3/2000
12:49:46 . . .
8849 ONS 1/3/2000
12:54:40 . . .
8830 ONS 1/3/2000
12:55:12 . . .
8841 REM 1/3/2000
12:55:22 . . .
. . .
The Grievant attempted, without success, to get the audio tape of January 3. The
over the tape before he could get it. He noted that the time entries on the "Narrative" and
sections of the CAD Operations Report are not identical.
He acknowledged that the 10-23 code "normally" means pulling into the driveway or
the squad on the scene at a dead stop. In normal conditions, he would not have used the
January 3. However, conditions were not normal on January 3. The roads were slushy and
covered, and a wet snow was falling. The roads he was travelling demanded his full
there was no purpose to an extended dialogue with the dispatcher. He believed he could not
been more than seventy-five seconds from the residence when he called in the 10-23,
time spent in overshooting the driveway. He acknowledged that the 10 codes continue to be
for ease of reporting and for their strictness of meaning.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The County's Brief
The County notes that Article 7, Section 1
requires it to have just cause to discipline, but does
not define "just cause". Arbitral authority does, however, demonstrate that "just cause" is
when "an employer, acting in good faith, has a fair reason for disciplining an employee,
is supported by the evidence." Here, the Grievant, as any other employee, received the
Personnel Manual. The Manual is consistent with the labor agreement, and governs areas of
not otherwise governed by the labor
agreement. Even though the County maintains no specific policy defining the precise
point at which
a Deputy can report by radio that he is "on scene", the Manual demands that employees act
"consistent with reasonable and commonly-accepted standards of behavior."
The evidence will not, the County contends, support the Grievant's position that he
consistent with commonly-accepted standards of behavior. Initially, the County notes that
Grievant's "substantial self-interest" in avoiding discipline must be weighed in assessing his
That the Grievant failed to consistently account for his conduct further undercuts his
if it could reasonably be asserted that Klanderman is biased, no such assertion can be
made regarding Klatt's testimony. That no one but the Grievant testified that he acted
establishes the weakness of his testimony.
A review of the circumstances surrounding the incident establishes that the one-day
suspension was appropriate "if not overly lenient". The incident prompting the call was "a
emergency" in which "it is critical to be precise when radioing to dispatch regarding one's
That the medical emergency did not result in death or injury has no bearing on the discipline
here. Properly focused, the discipline concerns improper conduct "that needs to be
an individual patient's condition. Klanderman sought the imposition of a three-day
Grievant's conduct standing alone could warrant either, but the existence of prior discipline
underscores the lenience of the County's reduction of the discipline from three days to a
That Klatt broke off his own response based on the Grievant's statement that he was "on
underscores how dire the implications of the Grievant's conduct were. That the Grievant's
beyond the driveway of the residence to which he was responding further underscores the
to report being "on scene" until actually on scene. Beyond this, setting aside the suspension
only encourage sloppy radio reporting between deputies and the dispatch center.
Arbitral authority establishes that "the arbitrator should not substitute his/her
that of management unless the arbitrator finds that the penalty is excessive, unreasonable, or
management has abused its discretion." The evidence establishes that the one-day suspension
reasonably related to the seriousness of the grievant's proven misconduct." Beyond this, a
of relevant arbitration decisions "involving similar situations suppprts the County's decision
suspend the Grievant."
Viewing the record as a whole, the County concludes that "the grievance should be
The Association's Brief
After a review of the evidence, the Association notes that Article 7, Section 1 does
specifically define "just cause". The Association asserts that to meet this standard the
show that the Grievant is guilty of misconduct and that the one-day suspension reasonably
its disciplinary interest.
Arbitral authority establishes the importance of "reasonable rules or
applied and enforced and widely disseminated by the Employer to the employees." Here, the
failed to establish the existence of any "specific rule requiring that deputies advise the
that they are 10-23 (on scene) when the deputy is physically in front of the
location." None of the
testifying witnesses could establish that the 10-23 code has a commonly understood meaning.
most, Klatt's testimony establishes that this code reflects an individual deputy's exercise of
That the County is moving away from the use of numerical codes underscores that "the
of the 10-codes is simply not a department priority anymore."
County arguments gloss over the absence of a specific policy by citing "a vague and
overbroad statement" from the Manual. In the absence of a "clear rule" governing the use of
the 10-23 code, the County must rely on the individual discretion of its deputies. Any other
would turn the general statement from the Manual into an unreasonable work rule.
A review of the evidence cannot support the County's assertion that the Grievant's
was "so egregious as to have been life threatening". A more balanced review must recognize
adverse weather conditions, and that compliance with the County's view of the 10-23 code
require the Grievant violate safety factors in responding to an emergency call." More
the Association argues that the Grievant used the 10-23 code to avoid unnecessary contact
himself and dispatch, and to permit him to concentrate on driving through winding and icy
Grievant did no more than follow commonly understood policy and procedure in arriving "at
scene in the most expeditious manner possible."
Klatt's oral and written account of the incident placed the Grievant roughly two
the scene when he called in 10-23. A detailed view of the dispatcher and computer
on the CAD Operations Report will not, however, support this view. Rather, the evidence
that Klatt's account represents no more than a guess. The evidence fails to undercut Meyer's
testimony that, even allowing for his sliding past the driveway, the time between his report
and his arrival at the scene was minimal. That the Grievant heard Knudson's report that "the
was breathing, but unconscious" underscores that the Grievant did nothing wrong.
Because the County has failed to prove the existence of misconduct, "the discipline
to the Girevant must be considered unreasonable, arbitrary and capricious." That Klatt broke
response to the scene reflects not misconduct by the Grievant, but Klatt's exercise of the
judgment exercised by the Grievant. If the Grievant's judgment is considered misconduct,
Klatt's failure to inform the dispatch center that he had broken off his response must also be
considered misconduct. A more balanced review of the record establishes that the County
"is nit-picking in its attempt to justify improper conduct by the Grievant. Even if the
Grievant's exercise of
discretion could be considered misconduct, the prior discipline meted to the Grievant has no
on the incident posed here.
The Association concludes by requesting "that the Arbitrator:
1. Order that the Employer expunge the letter of
suspension from the Grievant's personnel files,
as well as all other related documents and correspondence.
2. Order that the Employer make the Grievant whole
for all lost wages and benefits resulting
from the Grievant being suspended for one-day without pay on January 10, 2000.
3. Order that the Employer cease and desist from
further violations of the Agreement."
The County's Reply Brief
The County contends that the Grievant "violated not only a written policy in the
Personnel Handbook, but also common sense rules of conduct." The evidence establishes no
to doubt this beyond Klatt's reservation that he cannot speak for every deputy regarding the
the 10-23 code. The fact remains that the Grievant's testimony is the only evidence that his
the "10" codes was proper. The Association's conjecture cannot gloss over the lack of
corroborating the Grievant's testimony.
The Association's arguments establish no basis to doubt the County's disciplinary
enforcing accurate reports to dispatch. That the evidence is unclear on whether it took the
one or two minutes to arrive at the scene cannot obscure that "he failed to follow proper
which must be followed for the safety of citizens and officers alike." The one-day
be seen as lenient in light of the evidence and arbitral authority. Nor can the declining use
codes offer any support for the Association. The plain fact remains that the Grievant "is a
officer responding to an emergency situation and strict radio protocol must be maintained."
County concludes that "the grievance in this matter should be denied."
The Association's Reply Brief
The Association determined not to file a reply brief.
The stipulated issue questions whether the County had just cause under Articles 3 and
suspend the Grievant. Where the parties have not stipulated the standards defining just
analysis must, in my opinion, address two elements. First, the County must establish the
of conduct by the Grievant in which it has a disciplinary interest. Second, the County must
that the discipline imposed reasonably reflects that interest. This does not state a definitive
to be imposed on contracting parties. It does state a skeletal outline of the elements to be
and relies on the parties' arguments to flesh out that outline.
The evidence regarding the first element focuses on the soundness of the Grievant's
the 10-23 code on January 3. The evidence does not pose a significant issue regarding the
understanding on use of the code. The Grievant testified that he believed the 10-23 code
normally be used unless a deputy is pulling into the driveway of a residence or is at a dead
the scene. There is little variance in all of the testimony on this point. None of the
witnesses felt that, under normal circumstances, the 10-23 code could be extended to one to
minutes from the source of a dispatch call. Thus, the absence of a County work rule
use of the "10" codes, or the presence of a Handbook reference providing that employees
conduct themselves consistent with "reasonable and commonly-accepted standards of
only a peripheral bearing on the application of the just cause analysis. The issue on the
on the Grievant's judgement in using the 10-23 code before he had arrived at the residence.
The exercise of sound judgement is the core of the competent performance of
law-enforcement duties. Statute, work rule and training function as the necessary guides to
but the exercise of individual discretion in applying these guides to specific situations is the
which rests the quality of an individual officer's conduct or an employer's disciplinary
interest in that
conduct. That a deputy exercises judgement "in real time", while an employer or arbitrator
hindsight to review that judgment must temper the after-the-fact review of third parties.
that review is inevitable if experience is to guide the future exercise of judgement. Striking
appropriate balance can be difficult. The most difficult review of the exercise of judgment
cases in which an officer has selected among a variety of arguably equally valid or invalid
This grievance is not, however, within that class. In this case, the Grievant chose an
unnecessary and invalid response to the situation he faced. His inaccurate use of the 10-23
unwarranted under any view of the facts.
That a deputy's response to dispatch must be accurate is the cornerstone of the
system. The intelligent exercise of discretion by an individual officer demands strict
communication to and from the dispatch center. Here, there is no dispute the Grievant was
the scene when he used the 10-23 code. On this basis alone, the County has a demonstrated
disciplinary interest in the Grievant's conduct.
The force of the Association's arguments must be acknowledged, but affords no
defense to the disciplinary interest asserted by the County. The Association's detailed review
computer and dispatcher-generated CAD Operations Report does cast doubt on whether there
a two-minute delay between the Grievant's call-in of the 10-23 code and his arrival at the
This fails, however, to address the underlying flaw in the Grievant's use of the code. Under
of the facts, there was a one-minute delay. Without regard to the actual timing of the
call-ins, it is
undisputed that Klatt relied on the Grievant's use of the 10-23 code in deciding to break off
response. This is true whether that report came at 12:55:12 p.m. or at 12:54:30 p.m.
it is undisputed that Klatt had sufficient time, after the Grievant's call-in of 10-23, to turn
drive back toward the residence before the Grievant actually entered the driveway.
Even if these facts could be considered in dispute, the Grievant acknowledged that he
reported 10-23 well before he overshot the driveway of the residence. Standing alone, this
underscores the flaw in his use of the code. He testified that the adverse weather conditions
demanded he pay full attention to his driving. In his view, this justified the use of 10-23
10-60. He acknowledged that he had three-tenths of a mile to cover before reaching the
At best, this establishes that he used the 10-23 code to secure himself sufficient time to safely
negotiate the distance between himself and the source of the dispatch call. Standing alone,
exercise of judgment is flawed. As noted above, it is inevitably flawed because it was
More practically, it was flawed because its use could not be expected to produce any
It is undisputed that each responding deputy was trained in CPR, and that having two
scene would have been desirable. The Grievant's use of the 10-23 code did nothing to
end, and in fact acted to delay or prevent it. The report of 10-23 did nothing to enhance the
Grievant's ability to respond to the adverse weather conditions. If the weather demanded his
attention, not immediately responding to the dispatcher would have been preferable to a
Having chosen to report, the Grievant's inaccurate use of the 10-23 code did nothing to assist
driving. Reporting 10-23 took no longer than reporting 10-60 would have.
More significantly, the Grievant's choice to use the 10-23 code unnecessarily altered
response to the residence. Whether Klatt should have broken off his response or not, the
use of 10-23 prompted it. Even ignoring Klatt's response, the Grievant's use of 10-23
weather conditions put the arrival of a second deputy at the residence at risk of delay or
the Grievant slid by the driveway underscores how unreliable the roads were. This cannot,
justify the Grievant's conduct. Rather, this underscores how important the accurate use of
code is. Had the Grievant simply reported 10-60, or said nothing at all, he and Klatt would
continued their response. This would have offered the stricken resident the greatest
the quickest possible response of a second deputy. The Grievant's use of the 10-23 code
for no apparent benefit. After he reported 10-23, the response of a second deputy was
focused solely on him.
In sum, the County has a disciplinary interest in enforcing the accuracy of responses
dispatchers and road deputies. In this case, the Grievant's use of 10-23 when he was at least
from the site of a medical emergency was improper. That weather conditions were adverse
no defense to the inaccurate use of the 10-23 code. The Grievant, by using the code, did not
among arguably valid choices. Rather, he determined to cut-off dialogue between himself
dispatch by using 10-23 instead of 10-60. This choice, however, served no useful purpose in
him and acted to cause another deputy to vary his response to the call. Thus, the County has
first element to the cause analysis.
It is undisputed that the County uses a system of progressive discipline, and that the
Grievant's disciplinary history includes a prior suspension. The record regarding the severity
one-day suspension in light of the Grievant's past record is, however, somewhat mixed. The
extent of his prior disciplinary record is not clear. His most recent suspension was imposed
of 1995, but not resolved until May of 1996. It is thus somewhat dated. The failure to file
that prompted the 1995 suspension would appear to have involved negligence on the
as opposed to the flawed judgement posed here. In any event, the one-day suspension posed
is a less severe sanction than the prior discipline.
Most significant to the application of the second element is the Grievant's response to
discipline. The grievance alleges the County's assertion that the Grievant had improperly
10-23 code is "false, and erroneous." Although the Grievant's testimony was more measured
the written grievance, there is no indication the Grievant perceived any merit to the County's
The evidence establishes, however, that his exercise of judgement was flawed. Against this
background, and given whatever ambiguity the Grievant's past record may pose, there is no
persuasive reason to believe the County could have communicated the significance of its
interest with a lesser degree of discipline than the one-day suspension it imposed. Thus, the
has met the second element of the cause analysis, and has demonstrated that the one-day
did not violate Article 3 or 7.
Before closing, it is appropriate to tie this conclusion more closely to the parties'
The force of the Association's arguments concerning the absence of formal policies
governing the use
of the "10" codes, and the factual basis for the County's discipline should not be ignored.
evidence, however, will not support them. As noted above, the Grievant acknowledged that
would not, in normal circumstances, use the 10-23 code as he did on January 3. Thus, the
must turn less on the clarity of the notice regarding the impropriety of his conduct than on
soundness of his discretion to use the 10-23 code as he did on January 3. As noted above,
judgement was flawed. Limiting the time between his report of 10-23 and his arrival at the
does nothing to obscure that his report altered the nature of the response to the scene for no
reason. His use of 10-23 did nothing to enhance his concentration on his driving. It did,
alter Klatt's response to the call.
Nor can branding Klatt's response as inappropriate alter the flaw in the Grievant's
10-23 code. Whether Klatt broke off his response or not, the Grievant was no closer than
three-tenths of a mile, in poor driving conditions, from the residence. Nor can the
significance of that three-tenths of a mile be diminished under the conditions present on
January 3. By the Grievant's own
account, he had to negotiate a tight turn before entering the "home stretch" to the residence.
having done so, he slid well past the driveway. He had, for that period, little control over
response. This cannot be squared with any persuasive use of the 10-23 code. That he chose
inaccurately apply the 10-23 code is the ultimate, and proven, flaw in his exercise of
County evidence concerning other examples of discipline affords limited guidance
of the examples bear directly on the type of judgement posed here. That the Sheriff reduced
suspension from the three days recommended by Klanderman offers no guidance. Arbitral
discipline concerns the discipline actually imposed. The Sheriff and Klanderman apparently
on the significance of the underlying conduct. Evidence concerning the reasons for that
could afford some guidance, but the presence of a disagreement, standing alone, does nothing
establish whether the discipline imposed reasonably reflects the County's disciplinary interest
Ultimately, the grievance questions an individual act of judgement. The record poses
substantial issue of witness credibility. The grievance poses no issues regarding the
any testifying witness. Rather, the Grievant and his supervisors disagree on the soundness of
judgement he exercised in responding to dispatch on January 3. The evidence supports the
conclusion that the Grievant exercised flawed judgement in using the 10-23 code on January
The County did have cause to suspend the Grievant for one day on January 10, 2000.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 15th day of November, 2000.
Richard B. McLaughlin, Arbitrator