BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CALUMET COUNTY (HIGHWAY
AFSCME LOCAL 1362, AFL-CIO
(Christopher Fritsch Suspension/Termination Grievance)
Corporation Counsel, by Attorney Melody Buchinger, 206 Court
Street, Chilton, Wisconsin 53014, on behalf of Calumet County.
Ms. Helen Isferding, Staff Representative, Wisconsin Council
AFSCME, AFL-CIO, 1207 Main Avenue, Sheboygan, Wisconsin 53083, on
behalf of the Union.
Pursuant to a joint request for the appointment of a staff
arbitrator, the undersigned, Steve Morrison, was designated by the
WERC as arbitrator to hear and to decide the instant dispute
between the Union and the County in accordance with the grievance
and arbitration procedures contained in the parties' labor
agreement. A hearing was held before the undersigned on January
12, 2001. The hearing was transcribed. Post hearing briefs and
reply briefs were exchanged by April 4, 2001, marking the close of
the hearing. Based upon the evidence and the arguments of the
parties, the undersigned makes and issues the following Award.
The parties were unable to agree on a statement of the issues
and have left it to the Arbitrator to frame the issues to be
The County would frame the issues as follows:
Did the Employer violate the collective bargaining agreement
when it suspended Christopher Fritsch for ten days in a letter
dated August 7, 2000 (Jt. Ex. 4)? If so, what is the appropriate
Did the Employer violate the collective
when it terminated Christopher Fritsch on August 24, 2000 in a
letter of the same date (Jt. Ex. 5)? Is so, what is the
The Union would frame the issues as follows:
1. Did the Employer have just cause to discipline Chris
Fritsch with a ten-day suspension and final warning on August 7,
2000? If not, what is the appropriate remedy?
2. Did the Employer have just cause
to discipline Chris
Fritsch with termination on August 24, 2000? If not, what is the
The Arbitrator states the issues as follows:
Did the Employer violate the collective
when it suspended the Grievant for ten days on August 7, 2000? If
so, what is the proper remedy?
Did the Employer violate the collective
when it terminated the Grievant on August 24, 2000? If so, what is
the proper remedy?
Calumet County and Wisconsin Council 40, AFSCME, AFL-CIO are
parties to a collective bargaining agreement covering the period
January 1, 1998 to December 31, 2000. The instant grievance was
filed under the terms of that agreement. Pursuant to stipulation
of the parties the grievance is properly before the Arbitrator.
Christopher Fritsch, hereinafter referred to as the
"Grievant," was hired by the County as a mechanic in July of 1995.
His term of service was free of discipline until October 20, 1998,
at which time he received a verbal warning from Commissioner John
Haase for failing to report to work on time and for failing to
properly notify management of his absence. He was warned that
further infractions of this nature would subject him to
On November 16, 1998, the Grievant was given a one-day
suspension without pay for failing to report to work on time.
Commissioner Haase advised the Grievant that his work performance
would be reviewed in 30 days and that, until the end of the year,
he would be required to provide a physician's excuse for any use of
sick leave. Commissioner Haase also invited Mr. Fritsch to avail
himself of the help of the Employee Assistance Program in the event
he felt that it would be beneficial.
On September 7, 1999 (roughly nine months later) Mr. Fritsch
was given a five-day suspension without pay for once again failing
to report to work on time. He was warned that any further
tardiness or failure to call in properly would result in his
"immediate termination" and he was, again, advised of the
availability of the Employee Assistance Program to help him
"correct his behavior."
On September 29, 1999, the Grievant failed a random alcohol
test and was immediately suspended from his position. On September
30, Highway Commissioner Michael Ottery informed the Grievant,
among other things, that he must be evaluated by a substance abuse
professional and that such an evaluation had been scheduled for him
on October 1, 1999. Further, as a pre-condition for returning to
work, he must have a repeat alcohol test showing an alcohol level
of below .02. The Grievant attended the assessment and also
arranged for an assessment of his own. The two were contradictory
and he was advised by the County that he could follow the terms of
either. The record is unclear as to which one he followed or to
the terms of either, but on October 12, 1999, he received a letter
from the County advising him that he would remain off duty without
pay until such time as he had started a treatment program of his
choice "as recommended in the assessment." Once he started the
program, he was to be placed on authorized leave of absence and was
able to use any paid time available to him. Additional unpaid
leave would be granted in order to enable him to complete the
program. This was termed a "last chance" agreement by the County
and the Grievant was advised that any further instances of
misconduct would result in immediate termination.
During the week of October 25, 1999, the Grievant was advised
that he could return to work prior to finishing the treatment
program if he received a work release from his counselor and passed
a return to work alcohol test. No time limit was placed on his
return to work. On November 3, 1999, at 7:10 a.m., he received a
call from the Highway Commissioner advising him that he (the
Commissioner) had tried to call the day before to advise of a
return to work alcohol test the County had set up for that day
(November 3) at 8:00 a.m. The Grievant had not been aware of the
test until he received that call and he did not attend the test.
Mr. Fritsch was subsequently terminated on November 10, 1999,
for his failure to attend the return to work test. This action was
grieved and Arbitrator Burns found that the County had violated the
collective bargaining agreement when it terminated the Grievant.
Calumet County (Highway Department), Case 108, No. 58564, MA-10995
(Burns, 05/12/00). Arbitrator Burns found that the Grievant did
not engage in misconduct when he did not make himself available for
the return to work test, hence, his prior disciplinary record was
irrelevant and the County had no cause to discharge him. He was
returned to work.
On Wednesday, July 26, 2000, the Grievant called in sick. On
the following two days, Thursday, July 27 and Friday, July 28,
2000, he was scheduled for vacation. On the following Monday, July
31, 2000, he called in sick again according to the testimony of
Commissioner Michael Ottery. Since he had called in sick on the
26th, the day before a scheduled vacation, the Employer's
suspicions were aroused. When he called in sick on the 31st he
left a message on two different voicemails, one with the office
manager and one with the stock room attendant, whereas the office
policy required that he speak personally with a Superintendent.
During the remainder of that day, Highway Commissioner Ottery
called the Grievant at home on four occasions to ask him to provide
"some type of documentation as to your sickness" when he returned
to work the next day. Mr. Ottery failed to speak with him although
he did leave the above message on the Grievant's answering machine.
Later that afternoon, County Administrator John Keuler did talk
with Mr. Fritsch and told him to bring a doctor's excuse to his
office the following morning.
The Grievant phoned his doctor's office first thing the
following morning, explained the situation and that he needed a
doctor's certificate and was told to pick it up at 9:30 a.m. The
excuse or certificate he was given indicated that the doctor had
not seen him but it did indicate that he was ill on the dates in
question. The doctor authorized his return to work. A meeting was
held on August 2nd between management and union representatives at
which time the Grievant was asked to explain the nature of his
illness. Initially he refused but ultimately explained "under
Partially on the strength of the foregoing record of
disciplinary actions, and, according to the County's letter dated
August 7, 2000, primarily on the basis of the Grievant's alleged
abuse of sick leave privileges on this particular occasion, the
County suspended the Grievant for a period of ten days without pay.
He was further advised that the County would consider July 31st and
August 1st as the first two days of his suspension with the balance
of eight days to be served at the discretion of the Highway
Commissioner to be determined as workload permitted. He was also
issued a "final warning" that any future discipline for any
misconduct would result in his termination.
On Friday, August 11, 2000, before the Grievant had served the
remaining eight days of his suspension, an accident occurred which
resulted in an injury to a fellow employee who was performing
highway work in the County. This employee was well liked and
respected by labor and management alike and the accident caused
sensibilities at the shop to heighten. More than one employee,
including the Grievant, made comments about the accident, which
related to safety concerns including foggy conditions.
Commissioner Ottery and the Grievant had brief words, which may be
summarized as follows:
Fritsch: I hope you're happy now. You almost got somebody
hurt or killed."
Ottery: Watch out. You're on thin ice.
Fritsch: What are you going to do to me? You can't do
anything to me. Just
Mr. Fritsch contends that Commissioner Ottery followed him around
the shop for a brief period of time following this exchange
taunting him and trying to provoke him into further action. The
Grievant says he did not respond to this provocation. Commissioner
Ottery notified Calumet County Administrator John Keuler of the
encounter. Mr. Keuler instructed Ottery to send the Grievant home
for the day so they could "check into this incident."
Superintendent Mischnick was assigned to walk the Grievant out
of the building and during this event, words passed between the two
and they may be summarized as follows:
Fritsch: Nice day for a motorcycle ride,
for riding this
Mischnick: You should be aware that Mike
(Ottery) is going to
try and contact
you this afternoon to let you know the
Fritsch: If I answer my answering
At about eight o'clock that evening Administrator Keuler
received a telephone call at his home from a woman threatening
bodily harm if he did not return Mr. Fritsch to work on the
following Monday. Subsequent investigation by the local police
pointed to the Grievant's girlfriend as the caller. She was
arrested and convicted of making the threat. The Grievant was not
charged and no evidence pointed to his having had knowledge of the
On August 24, 2000, the Grievant received a letter from County
Administrator Keuler setting forth the details of the verbal
encounter with Commissioner Ottery and concluding that the comments
made by the Grievant were rude and discourteous and that they
constituted insubordination. Consequently, he was advised that his
employment with the County was being terminated. It also contained
a description of the weather conditions at the time of the accident
as being "clear driving conditions, not the foggy conditions that
you encountered when driving to the shop." Administrator Keuler
characterized the Grievant's comments as "more than the shop talk
others might engage in" because of the "context" of his record and
his "previous discipline." This letter also referenced the death
threat Administrator Keuler had received and pointed out that the
Grievant's girlfriend had been arrested and was "waiting to be
charged by the District Attorney." The letter recapped his
disciplinary history and referenced his failure to use the
"appropriate call-in procedure by not speaking to a Supervisor."
Finally, the letter advised the Grievant that the County has a zero
tolerance policy for violence, actual or threatened, and that they
were taking "appropriate precautions." These precautions included
a caveat to the Grievant that because of the threat he would be
allowed on the premises only after regular work hours and only
while a representative from the Sheriff's Department was on hand to
act as a peace officer. If he showed up at the Highway Shop or the
Courthouse, the letter said, without first making an appointment,
the "County will seek prosecution."
ARTICLE IV SENIORITY
4.01 Application In General
Seniority shall mean the continuous length of service
with the County from an employee's last date of hire.
Employees shall lose their seniority only for the
Retirement, resignation, or discharge, if not
reversed through the Grievance Procedure.
. . .
ARTICLE VI GRIEVANCE
. . .
6.05 The arbitrator shall not have the
power to add to,
subtract from, or alter the Agreement.
. . .
ARTICLE VII MANAGEMENT RIGHTS
7.01 Unless otherwise herein
provided, the management of the
work and the direction of the working forces, including the right
to hire, promote, transfer, demote or suspend, or otherwise
discharge for proper cause, and the right to relieve employees from
duty because of lack of work or other legitimate reason is vested
exclusively in the Employer. If any action taken by the Employer
is proven not to be justified, the employee shall receive all wages
and benefits due him for such period of time involved in the
. . .
. . .
10.02 Sick Leave
. . .
Sick leave can be used only in the case of illness
on the part
of the individual or required attendance on the part of
his immediate family. Immediate family shall mean:
mother, father, spouse, son or daughter (including step-parents and step-children).
After four (4) instances of
sick leave usage for the employee,
personal illness or injury in a calendar, a doctor's
certificate may be required. The Employer shall pay the
cost of said certificate if any.
. . .
POSITIONS OF THE PARTIES
The ten day suspension: The County maintains that it strictly
followed its rules, standards and policies when it disciplined
(and, later, when it discharged) the Grievant and that these
policies contain Arbitrator Daugherty's seven "just cause"
standards which have been used to govern collective bargaining
cases. It asserts that both parties agree that these standards
apply to this case and that it complied with each and every one in
the disciplinary process relative to this Grievant.
The County argues that it gave Mr. Fritsch proper notice of
the consequences of failing to comply with County policies when it
provided him with copies of its progressive discipline schedule and
reminded him of his prior disciplinary record which contained
verbal and written warnings. Thus, the County says, the Grievant
knew he was subject to progressive discipline and knew that he was
"approaching the termination step."
Regarding the rule requiring employees to speak directly with
a supervisor when calling in sick, the County asserts that this
rule is necessary for the effective operation of its department and
the authority to promulgate such rule is provided in the collective
bargaining agreement. This rule was properly noticed to the
employees via memo and via posting. Additionally, the Grievant was
personally given a copy of the rule shortly before this incident
and, if that wasn't enough says the Employer, it was read to him.
The Employer explains the reason for the rule is "to allow the
Superintendents to schedule people in the place of the absent
employee and to conduct business in an orderly fashion." The
County points out that when the Grievant was first disciplined for
failure to call-in his absence he was cautioned that "this kind of
behavior is unacceptable" and "it disrupts work flow and results in
reassignment of your duties and delays in accomplishing assigned
work." The County argues that when the Grievant called and left a
message he "caused a situation where the Superintendents did not
know he was going to be absent until after the starting time."
The Employer argues that it has a legitimate concern in
preventing sick leave abuse and may even have an obligation to
guard against it. Further, it has a right to expect that its
employees will be at work on time, it argues, and that this
requirement is especially true in the case of the Grievant because
he is a mechanic and hence, crucial to the operations of County
business. The County asserts that simply because the Grievant had
a right to paid sick leave this did not give him an unfettered
right to take off work whenever he pleased and that when questioned
about his illness the burden passed to him to prove he had been ill
or had been attending a medical or dental appointment. In failing
to produce a "meaningful" doctor's excuse; in failing to offer any
explanation as to why he failed to offer such an excuse; in failing
to divulge the nature of his illness upon initial inquiry by the
Administrator; all of these, argues the Employer, show that he
failed in this burden. In short, he failed to prove that he had
been ill on the days in question.
Relative to the Employer's duty to investigate the
circumstances prior to initiating disciplinary measures, the County
points to the fact that the Grievant called in and left messages
instead of talking to a Superintendent. Also, the Grievant
acknowledged receipt of a prior memo explaining the procedure.
Further, his admission that the Commissioner had called him at home
four times, says the County, is more evidence of a proper
investigation. If that weren't enough, the County argues, the fact
that the Grievant acknowledged that the County Administrator asked
him to explain why he was ill coupled with the fact that the
Commissioner made a trip past his house to check on him proves
conclusively that an adequate investigation was undertaken and
The County takes the position that its investigation was fair
and objective given the facts as related above and that it was the
Grievant who failed to cooperate by not answering his telephone
when the Commissioner called and by not producing a "meaningful"
doctor's excuse. By initially refusing to answer questions about
his medical condition at the meeting with the Administrator and
others, Mr. Fritsch further frustrated the Employer's investigative
efforts. According to the County, it did everything in its power
get to the bottom of the situation, the Grievant's uncooperative
The County says it treats all employees equally on the issue
of sick leave. It argues that a Department Head has a right to
know why an employee is not at work and that there is nothing
unusual or inappropriate about a Department Head calling an
employee's home, or driving past his home to check on him, or
requiring an employee to provide a doctor's excuse when there is a
suspicion of sick leave abuse. The County says that it was
reasonable to be suspicious in this case because sick leave was
tacked on to the front and back of scheduled vacation time.
Turning to the discipline itself (the ten-day suspension), the
County argues that this was the culmination of a regimen of
progressive discipline issued to the Grievant. It says that each
step provided notice or warning of unacceptable conduct adding "an
element that is calculated to impress upon the employee the growing
urgency of compliance and the risk of termination."
The County argues that the Grievant was given the opportunity to
comply with the County's policies and that it (the County)
communicated to him the likelihood of termination if he failed to
do so. The County asserts that, in this particular case, this
progressive discipline schedule had no effect on the Grievant.
They were futile and he "failed to respond to more moderate
disciplinary processes." The evidence of his failure to respond,
says the County, is that he had "one verbal warning, four
suspensions and two terminations within a five-year period."
The termination: The County asserts that abusive
verbal or physical, towards an employer constitutes insubordination
and grounds for termination. It argues that accusing the
Commissioner of responsibility for the accident which resulted in
injuries to a fellow employee "was clearly abusive, inflammatory
and discourteous" and that it taunted and enraged the Commissioner
to the point that it "negatively" affected his ability to manage
The County adds that the Grievant was also "discourteous and
inflammatory" to Superintendent Mischnick as he was escorted out of
the building when he said that it was "a nice day for a motorcycle
ride." The implication from this comment, says the County, was
that being suspended again was not important to him. The County
argues that the needs of the Department were obviously not
important to the Grievant as evidenced by his comment that he would
be available to the Commissioner that afternoon, "but only if (he,
the Grievant) answered his telephone." The County takes the
position that this language served no legitimate purpose and that
the only explanation for it was to make Superintendent Misting
The County says that the ultimate penalty (termination) was
based on seriousness and the number of incidents of misconduct and
that it had proper cause for discharge.
Finally, the County asserts that in the event its disciplinary
actions, or either of them, are overturned in this proceeding no
back pay would be appropriate because the Grievant failed to
mitigate his damages by not becoming employed elsewhere or by not
applying for unemployment compensation.
The ten day suspension: The Union essentially argues that the
Employer did not have just or proper cause to suspend the Grievant
because he wholly or substantially complied with the policies of
Relative to the Employer's allegation that Mr. Fritsch failed
to properly call in sick on July 31st, the Union points out that he
called the office on three separate occasions beginning at roughly
6:00 a.m. and that he left two messages on two separate voicemails
when he was unable to locate a Superintendent with whom to speak.
This action, says the Union, satisfied the primary purpose of the
Employer's policy of speaking to a Superintendent because it placed
the Employer on notice that the Grievant was not coming in to work
and gave the Employer sufficient time to make other work
arrangements. In short, the Union asserts that the Grievant did
the best he could in trying to comply with the sick leave call-in
policy when presented with an unmanned office. The Union also
argues that the notice of the sick call-in policy dated May 18,
2000 is vague and unreasonable. Vague because it does not contain
any direction on what an employee should do in the event no one
answers the phone (as in the instant case) and unreasonable because
it may cause a sick employee to have to stay out of bed to keep
trying to reach a Superintendent.
Regarding the doctor's excuse requested by the Employer, the
Union argues that the Grievant did his best to comply considering
the fact that the Employer's request was not communicated to him
until late on the afternoon of July 31, and that the Employer
demanded the excuse on the following day. The Union points out
that the Grievant contacted his doctor's office at 8:00 a.m. the
next morning and was told by the secretary or receptionist to pick
up the certificate at 9:30 a.m. He did so and presented it to the
Employer who, according to the Union, neither rejected it nor asked
the Grievant to supply another one more to the Employer's liking.
On a related topic, the Union argues that the Grievant had over 280
hours of sick leave banked at the time, had used sick leave in the
past for many acceptable reasons, did not have a pattern of sick
leave abuse and had never been warned about any such pattern.
The fact that Mr. Fritsch failed to answer his telephone
during the day on July 31st is, according to the Union, consistent
with the assertion that he was ill. The answering machine allowed
him to stay in bed and take care of himself while still allowing
him to return important calls when he felt better. The Union
points out that the Grievant did answer Administrator Kueler's call
later that day when he felt better, even though he had no
obligation to do so, and thereafter "jumped through all the hoops"
to provide the doctor's excuse to his employer.
As for the doctor's excuse, the Union asserts that, contrary
to the Employer's characterization of it as "meaningless," it does
refer to the Grievant being ill on the dates in question (even
though that reference was merely a recitation of the Grievant's own
explanation to the doctor) and, in any event, asks the Union, what
more could the Employer expect when making a demand for an excuse
after the fact?
Finally, the Union argues that the penalty assessed (ten-day
suspension) was excessive in that it failed to reasonably relate to
(a) the seriousness of the Grievant's proven offense and (b) the
record of the Grievant's service with the Employer. The Union
takes the position that since the Grievant had never been
disciplined for failing to talk to a supervisor when calling in
sick, a ten-day suspension for failing to do so is contrary to the
objectives of progressive discipline.
The termination: The Union asserts that Friday,
August 11, 2000,
the day of the accident which injured a co-worker, was a stressful
one for all of the County Highway Department employees. The
injured co-worker was a long-term employee, well liked by all and
employees were excited and upset about the incident. It claims
that the verbal exchange between the Grievant and Commissioner
Ottery was benign and born of this excited atmosphere and did not
rise to the level of "insubordination" as claimed by the Employer.
In support of this argument, the Union points to the lack of any
reference in the record indicating that the Grievant used profanity
and that his words were overheard by anyone else (implying that
they were not uttered loudly or in a threatening manner). The
Union further argues that it was the Commissioner, not the
Grievant, who escalated this encounter by "taunting" him and
following him through the shop area reminding him that he was "on
thin ice." It says that the Grievant attempted to withdraw from
the encounter because he knew it was escalating and he wanted to
end it but was prevented from doing so by the Commissioner.
The Union argues that the investigation into the incident at
the shop following the accident lacked due process, was unfair and
was void of objectivity due to the fact that Administrator Keuler
was involved. Because he signed the termination letter he was not
a "disinterested" third party, argues the Union, and this bias
eliminated the necessary element of due process. The Union points
to the language of the termination letter dated August 24, 2000,
written by Administrator Keuler, as evidence of the Employer's
flawed and biased investigation. This letter prominently
references the "death threat" telephone call and the Union suggests
that this reference suggests that the Employer was anticipating
that the police investigation would turn up evidence that Mr.
Fritsch was involved. It failed to do so, and by referencing the
threat in the letter, argues the Union, the Employer tipped its
hand to a predisposition to terminate the Grievant.
As to the burden of proving that the discharge was proper, the
Union argues that the Employer a) has the burden of so proving, and
b) failed to meet that burden because (1) Mr. Fritsch's language
never reached the level of insubordination, (2) the exchange was
precipitated by the excitable circumstances of the accident, (3)
the exchange was not unique between supervisors and employees on
that day, and (4) both parties were equally at fault.
The ten day suspension: The first question raised in
proceeding is whether or not the Employer's imposition of the ten-day suspension of Mr.
Fritsch violated the collective bargaining
agreement. The agreement provides management with the right to
suspend or discharge an employee for "proper cause" but does not
define that term. The parties jointly assert that this case should
be determined by the application of Arbitrator Daugherty's seven
tests. However, these questions have been criticized as being too
mechanistic. They are objective and require "yes" or "no" answers
and Daugherty himself admitted that "The answers to the questions
in any particular case are to be found in the evidence presented to
the arbitrator at the hearing thereon. Frequently, of course, the
facts are such that the guide lines [sic] cannot be applied with
slide-rule precision". Grief Bros. Cooperage Corp., 42 LA 555, 557
(Daugherty, 1964). With this caveat in mind, and in deference to
the parties mutual request, I will apply the facts here to the
Daugherty's first question essentially asks whether the
employee was placed on notice that his behavior was objectionable.
Actual communication, orally or in writing, of the rule and of the
penalty for violating the rule, must be made to the employee.
Employer's Exhibit #2 is a memo dated May 18, 2000, which sets
forth the call-in procedure. It reads:
If anyone wishes to call-in sick for a day of
sick leave before
the 7:00 a.m. starting time or your scheduled start time, (in the
event of starting early). You [sic] are reminded that you need to
call the office and speak to a superintendent no later than ½ hour
prior to 7:00 a.m. or your starting time to advise them you will be
absent for the day.
Thank you for your cooperation regarding
This memo was given to the employees, including the Grievant, on
that date and was also posted at all County shops. Daugherty
requires notice of the rules and of the penalty or penalties for
violating them: "Said forewarning or foreknowledge may properly
have been given orally by management or in writing through the
medium of typed or printed sheets or books of shop rules and of
penalties for violation thereof." and " There must have been actual
oral or written communication of the rules and penalties for
violation thereof." Grief Bros. Cooperage Corp., 42 LA 555, 558
(Daugherty, 1964). There is no mention in this memo of any
potential penalty in the event an employee fails to comply with it
nor does the record contain any other evidence of such
notification. The Grievant was advised on prior occasions that
discipline could result for failing to call in at all. Assuming
that this advice could be construed to satisfy the notice
requirement here, it referred to failures to call in, not to
failures to actually speak to a Superintendent when he called in.
In other words, ignoring the policy altogether versus doing it
incorrectly. Hence, no notice of the potential penalty for failing
to physically speak to a Superintendent was communicated to the
This does not fully address the issues relating to question
one, however. Commissioner Ottery testified that the Grievant was
suspended not only for incorrectly calling in but also for 1) not
providing a doctor's excuse, 2) attaching sick leave to vacation
days, and 3) failure to respond to calls he made to the Grievant on
that day. Relative to the "doctor's excuse," Commissioner Ottery
testified to the message he left the Grievant regarding the need
for such documentation and presented Employer's Exhibit #10, a hand
written document he testified was the exact message. It reads:
Thought I would try again to see if you were around. Its 8:20
Monday July 31. As I requested in the first message you need to
provide some type of documentation as to your sickness when you
return to work. Thank you.
Even though the Grievant did not receive this message until later
in the day and even though he did not speak with anyone from the
County until the end of that workday, he did call his doctor the
following morning and he requested an excuse. Obviously he did not
see the doctor
personally so the doctor provided the only thing he could have
provided a note certifying that Mr. Fritsch told him he had been
ill on the previous Wednesday, July 26th and on Monday, July
In short, Mr. Fritsch complied with his employer's request for
"some type of documentation" to the best of his ability under the
As for number two, the Grievant did attach sick leave to
vacation time. This is suspicious and the County had reason to
suspect that he may have been abusing the sick leave policy and
reason to investigate. Their investigation, however, did not
produce any evidence that the Grievant was not ill on those days
and the record does not support such a conclusion. A hunch or a
suspicion is insufficient support for discipline.
Reason number three does not support it either. The fact that
the Grievant failed to answer his phone during the day on July 31st
has been fully and adequately explained. First, he was ill and
testified that he was in bed asleep. Second, he testified that he
had turned his phone off and left it in the answering machine mode
so he could retrieve messages later and not be disturbed. Third,
he was not under any obligation to answer his telephone. There was
no policy or rule directing the Grievant to answer his telephone
when off duty and, consequently, no rule violation that could
support disciplinary action.
In light of the above discussion the answer to Daugherty's
first question is "no."
Daugherty's second question asks whether the rule is
reasonably related to the efficient and safe operation of the
business. There is no question that a work rule requiring
employees to notify the employer one-half hour in advance of
absences is reasonably related to the efficient operation of the
business. The real question here is whether the Employer
reasonably applied the rule to the situation. Commissioner Ottery
testified that the purpose of the call-in rule was "to allow the
superintendents to schedule people in (your) place if need be and
do business in a orderly fashion and it's consistent." He also
testified that Employer's Exhibit 2, the memo dated May 18, 2000
outlining the procedure, was generated because Mr. Fritsch had
called in the previous day at 6:43, only 17 minutes before he was
scheduled to start work. Therefore, it is clear that the primary
importance of the procedure is to ensure timely notification of
absence, not that one personally speak to a Superintendent. In
this case, the Grievant called in first at 6:00. No one answered
and he got a voicemail, so he left the following message:
Yeah, this is Chris. I won't be coming to
work today. I'm
sick. Six o'clock. Monday morning. August 31st.
He didn't stop there, though. At 6:05
he called the stockroom
attendant in the shop area. He testified that he knew
Superintendents sometimes gathered in that area in the morning.
Once again no one answered the telephone and he got the voicemail.
He left the same message once more, turned his phone to the
answering machine mode and went back to
bed. So, technically, the Grievant violated the rule even though
he believed he had complied with it and his efforts were made in
good faith. Even so, the answer to Daugherty's second question is,
Arbitrator Daugherty's third question asks whether the
employer made an effort to discover whether the employee violated
or disobeyed a rule or order of management. The answer is "yes."
Question four asks whether the employer's investigation was
fairly and objectively conducted. In order to pass the threshold
test the management official may be both "prosecutor" and "judge"
but may not also be a witness against the Grievant. In this case
Administrator Keuler acted in all three roles from time to time and
so the answer to this question is clearly "no."
Arbitrator Daugherty's fifth question inquires whether the
"judge" obtained substantial evidence or proof at the investigation
that the employee was guilty as charged. Here again, from a
technical point of view, the investigation revealed that the
Grievant did violate the rule by not speaking with a
Superintendent. The issue that no one answered the phone on the
two occasions the Grievant called in, and that he left messages on
two voicemails well in advance of the one-half hour before start
time (but not too early so as to try to avoid a personal
conversation) as required by the rule was given short shrift by the
"judge." The record does not reflect that it was given any
consideration in mitigation at all, as it properly should have.
"Just cause" requires that the degree of the alleged offense bear
a reasonable relationship to the penalty imposed. Schneider's
Modern Bakery, 44 LA 574 (Hon, 1965); Lincoln Industries, Inc., 19
LA 489 (Barrett, 1952). "The essence of 'just cause' is that the
Employer, in carrying out its inherent or express right to
discipline employees, must do so in a manner that is not
unreasonable, arbitrary, capricious or discriminatory." Indiana
Convention Ctr. & Hoosier Dome, 98 LA 713, 719 (Wolff, 1992).
Applying this test flexibly, as did Arbitrator Daugherty, I
conclude that the answer to it is "no."
The sixth test or question asks whether the employer has
applied its rules, orders and penalties evenhandedly and without
discrimination to all employees. The record is silent on this
point and so I am unable to apply this test.
The final question asks if the degree of discipline
administered by the employer reasonably related to (a) the
seriousness of the employee's proven offense and (b) the record of
the employee's service. I do not believe that the proven offense
in this case, i.e. the Grievant's failure to speak directly to a
Superintendent, was a serious offense given the Grievant's good
faith attempt to comply and given the fact that the purpose of the
rule, as stated by the Employer, was served through the efforts of
the Grievant himself. As for the employee's service record, the
County argues that it is dismal and that it fully supports the
conclusion that Mr. Fritsch is deserving of severe punishment. A
close look at his record, however, does not support this position.
His first warning, given for failure to report to work
on time and for failing to notify management of his intended
absence, occurred in October, 1998, after over three years of
trouble free service. One month later he was given a one-day
suspension for, again, failing to report to work on time. In
addition to the suspension, he was told that his work performance
would be reviewed in 30 days and that he would be required to
provide a doctor's excuse for any use of sick leave until the end
of the year. His record was clean for the next nine or so months
when, on September 7, 1999, he was given a five-day suspension for
failing to report to work on time. Later that month, the Grievant
failed a random alcohol test that led to a period of leave during
which time he started a treatment program. Thereafter followed
what may best be described as a misunderstanding relating to the
Grievant's failure to attend a return to work alcohol test. The
Grievant was discharged and filed a grievance. Arbitrator Burns
found that he had not engaged in misconduct and absent misconduct
on the part of the Grievant his prior disciplinary record became
irrelevant and just cause for discharge did not exist. So, when
viewed as a whole, the Grievant's disciplinary history consists of
four incidents over a period of five years. Not a stellar
performance, perhaps, but not the bleak picture painted by the
Employer. In consideration of the above, I find the answer to
question seven to be "no."
The seven test analysis of the ten-day suspension tallies four
"no"s and three "yes"es. In Daugherty's view, if the answer to any
one of the test questions is "no" then just cause for discipline
does not exist. Accordingly, I find that just cause for the ten-day suspension of the Grievant
in this case did not exist.
The termination: On August 24, 2000, the County
Grievant's employment. As grounds the County cited (1) the verbal
exchange between the Grievant and Commissioner Ottery following the
accident involving another employee, (2) the Grievant's
disciplinary history, and (3) last, but by no means least, the
threatening telephone call Administer Keuler received on the
evening of August 11, the day of the accident.
Applying the seven tests to the facts of the termination as
the parties have requested, I find that the answer to the first
question as set forth above would be "yes" if one concludes that
the comments of the Grievant constitute insubordination, as the
County does. I do not consider them to constitute insubordination,
however. The Grievant's comments may have been insensitive and
rude but they were not insubordinate. The comments were not made
in public and did not denigrate the Commissioner's authority to
lead or to exert supervisory authority. They were not vial or
profane. They did not indicate that the Grievant refused to follow
orders or to do work assigned to him. Consequently, they failed to
rise to the level of seriousness which would justify termination.
While the record is unclear on the exact words used, other comments
of a similar nature were made by other employees that day. All
were concerned with safety and for the injured employee.
Everyone's sensibilities were heightened and in such an atmosphere
it is to be expected that words will sometimes fly and that they
may be taken wrongly. So, if the rule allegedly violated was the
rule prohibiting insubordination, as the County seems to say, and
since the Grievant's behavior did not constitute insubordination,
the answer to the first question is "no."
A rule prohibiting insubordination is certainly one reasonably
related to the orderly, efficient and safe operation of the
business and, once again, if the Grievant had been guilty of
insubordination the County would have been justified in meting out
some form of substantial discipline. But he wasn't. So, the
answer to this question is technically "yes" but it is meaningless
since the Grievant is not guilty of a violation of this rule.
The third question relates to whether the employer made an
adequate investigation. While the County did investigate the
nature of the conversation between Commissioner Ottery and the
Grievant, as well as the one between the Grievant and
Superintendent Mischnick, the evidence suggests to me that the
County was predisposed to discharge the Grievant. With such a
biased mindset virtually guaranteeing the outcome, I must conclude
that the investigation was not adequate and answer this question
The fourth test is whether the investigation was conducted
fairly and objectively. Clearly it was not. The County's
recitation of the Grievant's disciplinary history in it's
termination letter of August 24, 2000 includes past infractions
which were overturned by an arbitrator and the ten-day suspension
grieved here which had yet to be heard. Also, the County placed
great weight on the threatening telephone call received by
Administrator Keuler for which the Grievant's girlfriend was
eventually found guilty. This certainly raised legitimate concerns
that the Grievant was involved and one can hardly fault the County
for so concluding, but the fact of the matter is the Grievant was
never charged or convicted nor was there any evidence that he was
aware of the call. The tone of the letter leads me to conclude
that the County anticipated that he would eventually be charged and
that that anticipation was a contributing factor, if not the
primary factor, in its decision to terminate him. The answer to
test four is "no."
The fifth question, "did the investigation produce substantial
evidence that the employee was guilty," must be answered "no" for
the reasons stated above.
With respect to the sixth test, "Had the Company applied its
rules, orders, and penalties without discrimination," the record
does not contain, and the parties did not point to, any prior
proceedings parallel to this one and, therefore, I have no way to
apply it to these facts.
The seventh test asks "Was the degree of discipline
administered in the particular case reasonably related to a) the
seriousness of the offense; and b) the employee's record of
service?" The answer is "no." I do not believe this was a serious
offense. I do believe it was an isolated incident brought on by
the circumstances of an accident involving injury to a friend and
valued co-employee and aggravated by the recent events leading to
the ten-day suspension viewed by the Grievant as being unfair. The
comments made to Superintendent Mischnick as the Grievant was
walked out of his place of employment were de minimis.
In short, I do not believe that the Grievant did that with
which he was charged. Had another form of analysis been applied to
these facts rather than Daugherty's seven tests, the results would
have been the same.
1. The County did violate the collective bargaining
agreement when it suspended the Grievant for ten days on August 7,
2000. The remedy for this violation is set forth under Article VII
MANAGEMENT RIGHTS RESERVED, Sec 7.01: "If any action taken by the
Employer is proven not to be justified, the employee shall receive
all wages and benefits due him for such period of time involved in
the matter." The suspension is vacated and any time served
thereunder is vacated and the Grievant shall receive all back pay
and benefits lost as a result of the period of suspension.
2. The County did violate the collective bargaining
agreement when it terminated the Grievant on August 24, 2000. The
remedy for this violation is set forth under Article VII
MANAGEMENT RIGHTS RESERVED, Sec. 7.01: (See no. 2 above.) The
termination is vacated and the Grievant is returned to work and the
Employer is directed to make the Grievant whole pursuant to the
terms of Article VII, Sec. 7.01 of the parties Collective
The Arbitrator will retain jurisdiction for the purposes of
the implementation of this award.
Dated at Wausau, Wisconsin this 4th day of June, 2000.
Steve Morrison, Arbitrator