BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1667, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Klos, Flynn & Papenfuss, by Attorney Jerome J. Klos,
appearing on behalf of the County.
Local 1667, AFSCME, AFL-CIO, hereinafter referred to as the Union, and Vernon
hereinafter referred to as the County, are parties to a collective bargaining agreement which
for the final and binding arbitration of disputes arising thereunder. The Union made a
the concurrence of the County, that the Wisconsin Employment Relations Commission
member of its staff to act as an arbitrator to hear and decide a grievance over a verbal
warning. The undersigned was so designated. Hearing was held in Viroqua, Wisconsin, on
2000. The hearing was not transcribed and the parties filed post-hearing briefs, which were
exchanged on November 27, 2000.
The County's nursing home, Vernon Manor, had a need for additional staff to fill
and it posted a notice on September 7, 1999 indicating the shifts and asking staff to volunteer
in. The grievant, who is also the Union president, wrote comments on the posting as
"Management needs to get help in here if that means hiring, that
means hiring. It is not the staffs
(sic) problem. It is managements (sic). The team of C.N.A.s and nurses is doing the very
that management is allowing us to do. We are all tired. Sincerely, J.C."
On June 9, 1999, the 300 hall was falling behind in its work. The grievant, who was
assigned to 300
hall at that time, stated to the other employees on 300 hall they would not ask for help.
when notified, reassigns staff to areas that need assistance. The grievant was given a verbal
for her actions. The matter was grieved and appealed to the instant arbitration.
The parties stipulated to the following:
Did the County violate the collective bargaining agreement by
giving the grievant, Judy Clark,
a verbal disciplinary warning?
If so, what is the appropriate remedy?
2.01 Subject to the provisions of this Contract and applicable
law, the County possesses
the right to operate the Manor and all management rights repose in it. These rights include,
not necessarily limited to, the following:
. . .
D. To suspend, demote, discharge and take other
disciplinary action against employees
for just cause;
POSITIONS OF THE PARTIES
The County contends that it has a duty under the law to properly staff and to manage
to provide proper care of the residents. It points out that the grievant had filed three
grievances claiming staff shortages and management presented adequate evidence that staffing
sufficient and exceeded state and federal rules. According to the County, the Union
conceded the issue as it failed to appeal the grievances. It submits the grievant was
interfering with management's duty to manage the staff. It claims that the grievant's
other staff recognized that the ward was falling behind in services to the residents and by
not to ask for help with knowledge that management shifts personnel from other wards,
coming from the Union president, constituted an order contrary to management's policy.
It submits that the grievant's annotating the official notice to solicit volunteers to
direction to employees not to sign up. It concludes that the grievant has acted
overstepped her function as the Union's president by trying to make or impair management
It argues that the grievant's unwarranted interference is insubordination which certainly
cause for an oral disciplinary warning.
The Union contends that the grievant is and has been President of the Union for the
years and an employee for the past twenty-six years with no previous discipline. It claims
Manor has attempted to discipline her in the past for her Union activities but the discipline
overturned by the Manor's Board of Trustees. It observes that the grievant testified that she
the actions involved in this case as President of the Union and not as an individual employee.
that this case is not a prohibited practice proceeding but cites
Section 111.70 (3)(a), Stats., on the
rights of a Union officer.
It argues that on June 9, 1999, the grievant reported a staff shortage to the Director
and nothing was done, so out of frustration the grievant wrote the comments on
Exhibit 3. It states
that somehow management misinterpreted the grievant's actions as a recommendation that
not sign up for extra work but this is misplaced and there is no documentation or testimony
support this contention. It points out that the grievant testified that she never advised any
not to sign up. The Union also contends that what the grievant wrote was true and not
The Union points out that a second incident which occurred shortly after June 9,
involved a shortage of CNA's and the grievant allegedly stated: "We will not ask for help."
the grievant admits to making a statement which can be construed to be similar to the quoted
statement. It claims that the grievant is being singled out as Union president, as it was the
charge who was aware of the shortage and was responsible for obtaining additional staff, not
It maintains that the Manor is interfering with the grievant's actions on behalf of the
and she was disciplined for seeking additional staff in one instance and not seeking additional
in the second instance, an untenable position.
The Union rejects the County's argument that the grievant's actions constituted
insubordination as there is no evidence that she was ever given a direct order and refused to
implement it. It states that there is no evidence of what alleged order the grievant did not
It concludes that the County did not have just cause to issue the grievant a verbal warning,
requests that all references to this discipline be removed from all of her personnel records.
It is undisputed that the grievant wrote on the notice posted by the County. This is
defacing County property. The Union argues that the grievant was acting as the Union's
and her conduct was protected. There are appropriate methods for the Union to address
problems such as filing a grievance and seeking redress to the Manor Trustees. The grievant
Union president for seven years and should be well aware of the proper procedure to address
perceived problems. She is not entitled to take actions which are in the nature of self-help.
surely understands the adage, "Work now, grieve later." Furthermore, arbitrators have
discipline of Union officials who have encouraged work stoppages, slow downs, or sabotage.
grievant's conduct is not as serious as those offenses, but neither is the discipline here, a
disciplinary warning. The grievant's conduct was not protected activity and her deliberate
the notice constituted grounds for discipline.
The second instance of misconduct was the grievant's announcement to other staff
though they were behind in their work, they would not ask for help. The Union argues that
not insubordination as there was no direct order which the grievant refused to obey.
is not limited to the refusal to obey a direct order. Arbitrator Brisco stated in Twin Coast
Newspapers, 89 LA 799 (1987) as follows:
"The concept of insubordination encompasses not only willful
disobedience to a direct order,
but also . . .deliberate acts of disrespect toward supervision. . .Such behavior would create
chaos in any workplace. Employee behavior of this sort cannot be sanctioned."
The grievant was aware of the procedures to call for assistance and told her co-workers
not to ask
for assistance. This type of behavior has only one purpose and that is to undermine
create chaos in the workplace. The grievant's conduct cannot be justified and is found to be
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned makes the following
The County did not violate the collective bargaining agreement by giving the grievant
disciplinary warning, and therefore, the grievance is denied.
Dated at Madison, Wisconsin this 5th day of December, 2000.