BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION LOCAL 662
TAYLOR COUNTY (SHERIFF'S
(Jay S. Thums Grievance)
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by Ms.
Andrea F. Hoeschen, on behalf of the Union.
Ruder, Ware & Michler, S.C., by Mr. Jeffrey T. Jones, on
behalf of the County.
The above-captioned parties, herein "Union" and "County", are
signatories to a collective bargaining agreement providing for
final and binding arbitration. Pursuant thereto, and after a
prolonged dispute between the parties over whether this was the
proper forum to address the grievance, hearing was held in Medford,
Wisconsin, on November 17, 2000. The hearing was transcribed and
the parties there agreed that I should retain jurisdiction to
resolve any questions arising over application of the remedy if the
grievance is sustained. The parties thereafter filed briefs and
reply briefs that were received by February 27, 2001.
Based upon the entire record and arguments of the parties, I
issue the following Award.
Since the parties were unable to jointly agree on the issue,
I have framed it as follows:
Did the County properly terminate grievant Jay S. Thums
pursuant to Article 6, Section 1, of the contract and, if not, what
is the proper remedy?
Deputy Sheriff Thums was employed as a patrol officer from the
time of his June 1, 1995, hire to the time of his October 21, 1997
discharge (unless otherwise stated, all dates herein refer to
1997). During that time, he was never disciplined and he had an
unblemished work record. Thums was discharged because of what he
did on September 24 when he witnessed Doctor Keith Cole kissing his
wife and because of his subsequent actions in reporting the
incident to then-Sheriff William K. Breneman, who conducted a full-scale investigation and
who subsequently recommended that Thums be
Breneman spoke to Thums on the afternoon of September 25. He
said that Thums then told him he had seen his wife, Cindy Thums,
kiss Cole at Cole's house the evening before when he was off-duty;
that he then became enraged and grabbed a two-by-four to hit Cole
and that he tried to lure Cole out of the house by making his dogs
bark; and that he did not do so because Cole never came out of the
house and because Thums had a change of heart. Breneman on
September 25 then went out to Cole's house where he saw a pickup
truck with three flat tires and he subsequently read various
reports prepared by other officers who spoke to Thums, along with
a report by then-County District Attorney Shawn Matter. Breneman
conducted a disciplinary hearing on October 2 where he first read
Thums' Garrity rights and he by letter dated October 6 informed the
County's Personnel Committee that he wanted Thums terminated. He
on October 6 also personally filed a criminal complaint (County
Exhibit 7), against Thums and had him arrested. The Personnel
Committee on October 21 conducted a disciplinary hearing where
Thums and others appeared and where Thums, according to Breneman,
did not deny any of the charges against him. The Personnel
Committee voted to terminate Thums effective that day.
Breneman referred the matter to a district attorney who
prosecuted Thums. Thums later entered into a plea agreement
wherein he pleaded guilty to criminal damage to property by
puncturing the three tires on Cole's vehicle (County Exhibits 8-9)
and which resulted in a deferred judgment (County Exhibit 8).
Under that plea agreement, Thums was ordered to: (1), not have any
contact with Cole and to have no violent contact with his wife;
(2), perform 100 hours of community service; (3), attend anger
management counseling; (4), pay for the damaged tires; and (5), to
pay $150 for each violation of County ordinances if he had an
unblemished record for two years. Asked if Thums had complied with
these terms, Breneman
replied: "I do not know". He also said that a local newspaper ran
a story on the incident; that different "members of the public. .
." complained about the incident; and that the incident had an
adverse impact on how the public and other sheriff departments
viewed members of the County's Sheriff's Department.
On cross-examination, Breneman acknowledged that he was the
complaining party on the criminal complaint because neither Cole
nor Thums' wife wanted to press charges against him. He also
acknowledged that two of the criminal charges filed against Thums
were dismissed; that the City of Medford Police Department
investigated the incident and that it only issued a civil, not
criminal, citation against Thums; that he personally got the City
of Medford to withdraw that citation so that he could file a
criminal complaint; that he was unsure whether Thums told him about
the slashed tires after he went out and saw them; and that neither
Cole nor Ms. Thums ever provided any written statements regarding
the incident. He also said that he could not recall whether he had
ever previously filed a criminal complaint after the City police
chief had decided to charge an ordinance violation.
Officer Harlan Schwartz testified that Thums spoke to him on
September 25 about the September 24 incident and that he prepared
a report (County Exhibit 12), which stated that Thums told him he
tried to lure Cole out of his house so that he could hit him with
a two-by-four. He also said that Thums on September 25 told him he
wanted Cole dead and that if he saw Cole with his wife he would not
know what he might do. Schwartz later visited Cole's house where
he found a long two-by-four behind the house.
When asked on cross-examination whether Thums on September 25
was forthcoming in describing his feelings over what had happened,
Schwartz replied: "Very much so."
Investigator Larry Woebbeking spoke to Thums and others on
September 26 and he prepared an incident report (County Exhibit
13). He testified that Thums on September 26 told him he wanted to
kill Cole; that he had tried to lure Cole out of his house to knock
his head off his shoulders; that he had slashed the tires with a
knife; that he thought for a moment that a knife would also work
well on Cole; and that if he saw Cole and his wife together he
would probably lose control. On cross-examination, he testified
that he spoke to Thums as a colleague and not as part of any formal
Deputy Sheriff Roger Engel testified that he prepared an
incident report (County Exhibit 14), after he spoke to Thums on
September 25, at which time Thums told him he had tried to get
Cole's dogs to bark so that he could knock his head off with a two-by-four. On
cross-examination, he said that he did not question
Thums on September 26; that he spoke to him because "he looked like
he was tired or sick or something"; and that officers at times
confide and tell each other what is going on in their personal
Thums testified that he went to Cole's house after work at
about 8:30 p.m. to apologize for suspecting that Cole was seeing
his wife who worked as Cole's direct nurse in the same medical
clinic. He then saw through a picture window Cole and his wife
kissing each other. At that point, said he:
I I started to boil. I think I got everything was
Everything was shaking. I was I didn't know what to do. I was
furious. I was very depressed. I was very I don't know exactly
how to explain it. And I just thought I'm going to go I'm going
to go right through that patio door and grab the guy and beat him.
Thums added that he did not know what to do; that he picked up a
two-by-four from his truck to hit Cole because he thought Cole
would come out of his house to see why his dogs were barking; that
he went to the front door to do so; and that he finally walked
away. He then used his knife to slash three tires on Cole's
vehicle because in his words: "This isn't hurting anybody. They're
going to know I'm here." When he was at work the next day, he
related to several others what had happened "minus the fact that I
I actually stabbed a knife in Dr. Cole's tires." He then told
Breneman "The same story. . ." but again did not mention the
slashed tires "Because it was pretty embarrassing, I suppose."
Asked whether anyone before then had any idea what transpired at
Cole's residence, he replied: "It appeared to me that nobody new
Thums admitted telling others that he "would like to see Dr.
Cole dead" and said that Breneman later that day told him that "the
problem just got worse" because he had discovered the slashed tires
which Thums then admitted to having flattened. He also said that
he paid $230 for the City of Medford citation relating to the
slashed tires, and that the citation was later dismissed and the
fine returned to him because Breneman had filed a criminal
complaint against him. In response to that complaint, he entered
into a deferred judgment (County Exhibit 8), wherein he agreed to
fulfill certain conditions which he subsequently met. He thus was
only charged with one crime and all of the charges were eventually
dismissed by the court with prejudice (Union Exhibit 3). He also
successfully completed an anger management course.
On cross-examination, Thums said that he did not
"intentionally" get Cole's dogs to bark when he was outside the
house and that when he appeared before the County's Personnel
Committee on October 21, he did not dispute any of the charges
against him. He stated that he does not recall ever telling
officers Schwartz and Engel he tried to lure Cole out of his house,
but that "It could have happened. I said a lot of things." He
denied ever telling Investigator Woebbeking or anyone else that
he tried to get the dogs to bark. He also stated that he grabbed
a two-by-four from his truck, and not from Cole's backyard; that he
did not know whether he would have hit Cole with it if Cole had
come out of his house; and that
Cole later refused his attempt to make restitution for the tires in
the amount of $800. He also said Cole telephoned him on
September 25 and that they spoke for about an hour.
Gary W. Krueger, an investigator for the City of Medford's
Police Department, testified that Thums on September 25 told him
what had happened the night before at Cole's house and that he
"didn't have any concern about [Thums] being a danger to me or
anybody else." Krueger and Thums then went to see Breneman, at
which point Thums told him what had happened and Breneman then took
Thums to a counselor. Krueger also said that he himself over the
years has discussed his own family problems with other officers and
that he would have been embarrassed if they ever became public.
On cross-examination, he said that Thums told him he did not
know what he would do if he again saw Cole with his wife and that
he was not present throughout all the time Thums spoke to Breneman
on September 25.
Medford Police Chief Jack Kay said that there was a "joint
investigation" between the Medford Police Department and the
County's Sheriff's Department regarding the September 24 incident;
that the City issued Thums a citation for damaging property which
is not a criminal violation and which is not a Class A misdemeanor;
and that the City issued the citation after he spoke to the City
Attorney. He also said that he was unaware of any complaint from
Cole against Thums and that Breneman himself had said that Cole did
not want any action taken against Thums.
On cross-examination, Kay said that slashing tires is a crime
under state law; that Cole on September 25 reported that the tires
were slashed; that Thums told him on September 25 that he got
Cole's dogs to bark to try to get Cole out of the house; and that
Thums also told him he did not know what he would do if he again
saw Cole with his wife. He added that criminal charges under the
state criminal law take precedence over City-issued civil
Ms. Thums testified that she and Thums were reconciled and
that she did not hear the dogs barking on the evening of September
24 when she was at Cole's house.
Recalled as a witness by the Union, Breneman testified that
the local newspaper on October 15 carried a front-page story about
the criminal complaint being filed that day (Union Exhibit 5) and
that he personally never spoke to the reporter who wrote the story.
POSITIONS OF THE PARTIES
The Union asserts that the County lacked just cause to
terminate Thums because his "off-duty misconduct is limited to
cutting Dr. Cole's tires"; because that single incident "does not
justify his discharge"; and because Breneman's "criminal charges
against Thums do not
convert Thums' conduct into a dischargeable offense." It also
asserts that the County's "charge of 'dishonesty' provides no basis
for Thums' discharge"; that an arbitrator under the contract has
the authority to review the penalty imposed; and that "Just cause
is the appropriate standard" to be used here. As a remedy, the
Union requests a traditional make-whole order that includes Thums'
reinstatement and a backpay award.
The County, in turn, claims that it properly terminated Thums
because "arbitral law establishes that an employer may discharge an
employee for off duty-misconduct" and that that is the situation
here because Thums' actions adversely impacted on the Sheriff
Department's reputation and image and because Thums is held to a
higher standard of conduct than other employees in other
occupations. The County also contends that I should defer to its
judgment as to what penalty should be imposed here.
This case turns on the application of Article 6, Section 1, of
the contract which provides:
Section 1. No employee who
has completed his/her probationary
period shall be discharged or suspended without one (1) warning
notice of the complaint in writing to the employee with a copy to
the Union and Union Steward, except no warning notice is required
for discharge due to dishonesty, being under the influence of
intoxicating beverages while on duty, carrying unauthorized
passengers in a County vehicle, recklessness resulting in serious
accident while on duty, or other flagrant violations. Warning
notice to be effective for not more than four (4) months from date
of notice. Discharge or suspension shall be in writing with a copy
to the Union and the employee affected. (Emphasis in original).
In applying this language here, the record establishes that
while there are certain disputed facts in the record, there are yet
other facts that are undisputed. Thus, it is undisputed that:
1. Thums saw his wife kissing Cole on September 24.
2. Cole did not press any
charges of any kind against Thums and
he in fact expressly stated that he did not want anything to
happen to him.
3. Ms. Thums did not press any
charges of any kind against
4. Cole telephoned Thums on
September 25, at which point they
spoke for about one hour in an amicable manner.
5. Thums offered to pay Cole
$800 for new tires, but Cole refused
to accept it.
6. Medford Police Chief Kay
issued a civil citation over the
September 24 incident after he had spoken to the City
Based on these undisputed facts - particularly the first one - it
can be reasonably concluded that neither Cole nor Ms. Thums wanted
any publicity over what had transpired on the evening of
Yet, there was publicity galore because Breneman contrary to
Cole's direct wishes insisted on going forward so that he could
impose the maximum possible penalty against Thums.
Breneman therefore did not tell the truth to Thums on
September 25 when he said that "if he were criminally charged to
this level, it would be out of my hands, absolutely nothing I could
do about it." That statement is demonstrably false because
Breneman subsequently did everything within his power to keep the
matter in his hands by: (1), insisting that the City of Medford
withdraw its civil action; and (2), then personally filing the
criminal complaint against Thums. (County Exhibit 7). He did
that even though: (1), Cole did not want the matter to go forward;
(2), Cole and Thums had resolved the matter themselves; (3), Thums
offered to pay for the damaged tires; and (4), Thums never
physically hurt anyone on the evening of September 24.
Hence, if Breneman had not personally filed the criminal
complaint against Thums on October 6, this matter probably would
have sunk to the oblivion it so richly deserved. It did not do so
for one reason and one reason only: Breneman decided that he would
become the prime mover in engineering Thums' discharge by filing
Ditto for the adverse newspaper publicity that Breneman
professes to be so concerned about. For without filing his
criminal complaint, there would have been less adverse publicity
and there would not have been a front-page headline reading:
"Deputy suspended after slashing tires in a jealous rage". Hence,
Breneman was directly responsible for much of the very negative
publicity that he complained about here.
Moreover, Breneman's criminal complaint (County Exhibit 7) was
notable for what it did not relate. For while including the ticky-tacky charge
that Thums had violated the law by causing Cole's dog
to bark, it managed to omit the one crucial fact which goes to the
crux of this case and which explains Thums' jealous rage: i.e. that
he saw his wife kiss another man. By deleting that crucial fact,
Breneman's complaint failed to present a true picture of why Thums
did what he did on September 24.
The judge assigned to that criminal case may have paid
attention to that most important mitigating factor since he
displayed the correct measure of proportionality and justice when
he on April 6, 2000, dismissed the criminal charges after Thums had
fully complied with the terms of the deferred judgment (County
Exhibis 8-9; Union Exhibit 3). Given that dismissal, it is
unnecessary for me to decide whether Thums' actions were criminal.
In addition to filing that complaint and thereby generating
the very publicity that he now complains about, Breneman did
something else: he waited until October 2 before he finally read to
Thums his Garrity rights (County Exhibit 2). They in essence
provide that while law enforcement officials are required to fully
cooperate with any investigation involving alleged wrongdoing, any
such admissions cannot be used against them in a criminal matter.
By October 2, though, Thums had fully incriminated himself by
making his various oral admissions. Breneman made sure that those
admissions were recorded as incident reports by the officers who
spoke to Thums at that time. Moreover, Breneman never told Officer
Schwartz to prepare his report until after Schwartz had spoken to
Thums. That is why Schwartz never warned Thums that he was
conducting a criminal investigation of the incident. Breneman also
never told Investigator Woebbeking ahead of time to prepare a
report of his conversation with Thums. That is why Woebbeking
acknowledged that his discussion with Thums represented a
discussion between colleagues and that it did not constitute
official police questioning. Engle also said that his conversation
with Thums did not constitute official police questioning. Hence,
it was only after those reports were filed that Breneman finally
got around to reading Thums his Garrity rights, which by that time
were practically worthless given the mountain of evidence that
Breneman had amassed.
While all of this was perfectly legal, it also was perfectly
lousy because: (1), Thums reasonably believed he was talking to
Breneman and other officers as colleagues, rather than as law
enforcement officials who were collecting criminal evidence against
him; and (2), Breneman's actions may deter other officers from
discussing personal matters at work lest they, too, are caught up
in a criminal investigation because of their own admissions.
Breneman's delay in giving Thums his Garrity rights is
important because Thums before October 2 was not the subject of any
formal investigation. Accordingly, it was at that point, and that
point only, that Thums was required to detail everything that he
did on September 24th. Before then, he was not required to make
any admissions which might subject him to criminal charges.
There thus is no merit to the County's claim that it properly
disciplined Thums under Article 6, Section 1, of the contract
because Thums was purportedly "dishonest" in not telling Breneman
that he had slashed Cole's tires and because he denied trying to
get Cole's dogs to bark. In fact, Thums was remarkably candid in
revealing that he was at Cole's house the
night before and that he then wanted to knock Cole's head off by
picking up a two-by-four and by standing outside the door. In
addition, since no one else witnessed or knew about what Thums
wanted to do, this charge never would have been filed against Thums
except for his own admissions. Indeed, if Thums had kept his mouth
shut, it is possible if not probable that no one would have
suspected him of anything. I therefore credit Thums' testimony
that when he reported for work on September 25: "It appeared to me
that nobody knew anything." Moreover, the County's Personnel
Committee on October 21 praised Thums for being "forthright, during
the investigation and hearing. . ." (Joint Exhibit 5).
As for not immediately admitting that he slashed Cole's tires,
Thums credibly testified that he did not do so because he was too
embarrassed. In addition, I credit his testimony that he related
that fact to Breneman on the afternoon of September 25. At that
time, Thums was not the subject of any formal investigation and he
was not required to make admissions that could lead to the filing
of criminal charges against him.
Moreover, while the County claims that Thums lied when he
denied making Cole's dogs bark, the totality of the record fails to
establish that Thums ever deliberately tried to shade the truth.
Indeed, Deputy Schroeder's incident report (County Exhibit 6),
states that Cole "also owns two black labs which he did not hear
bark all night." Since Cole was in the best position to know
whether his dogs barked when Thums was outside his house, and since
he said they did not bark, his statement to Schroeder shows just
how elusive the truth is in trying to accurately reconstruct what
happened with respect to his dogs.
The Union also correctly points out that Thums in any event
was never charged with this offense when he was disciplined. The
County thus is barred from raising this issue now, as it is well-recognized that an employer
must stand or fall on the original
reasons given for a disciplinary action and that it therefore
cannot add new grounds later on.
Given all this, the County lacked sufficient grounds to
discipline Thums for dishonesty.
Hence, Thums only could be disciplined for slashing three of
Cole's tires, for picking up a two-by-four and going to Cole's
front door for the purpose of hitting Cole, for subsequently making
threats against Cole, and for supposedly violating various County
rules and regulations. Such off-duty conduct certainly warrants
discipline for the very reasons stated by the County and in the
spate of arbitrable authority it cites which holds that discipline
is proper in such cases where there is a nexus between his off-duty
conduct and his employment relationship. Indeed, the County even
cites one of my prior arbitration decisions wherein I ruled that an
employer can discipline a police officer. See Jackson County, Dec.
No. 45685 (1992).
If Cole had filed charges against Thums and/or if Thums did
not come forward to reveal his own wrongdoing, this case would
stand on a much different footing. But Cole did not come forward
and he made it clear that he wanted this matter dropped. In
addition, it was Thums' admissions, and his admissions alone, which
revealed his own misconduct. Absent those admissions, none of this
affair ever would have become public. It ended up in the public
domain only because Breneman insisted on publicizing a very private
and embarrassing matter. The real victims therefore are Cole, Ms.
Thums and Thums himself.
As for slashing the tires, the record shows that: (1), Thums
offered to replace the tires; (2), Cole refused his offer; (3), and
Cole made it very clear that he did not want to pursue this matter.
All of the above must be considered in determining if: (1),
Thums' actions constituted "flagrant violations" as that term is
used in Article 6, Section 1; and (2), termination is the proper
level of discipline for his actions.
The County cites various cases, including Stockham Pipefitting
Co., 1 LA 160 (McCoy, 1945) for the proposition: "The Arbitrator
should defer to the County's determination as to the proper penalty
to be imposed for the grievant's misconduct.".
While some arbitrators adhere to this view, I believe the
better view is set forth in How Arbitration Works,
supra, p. 913,
which states: "Where the agreement fails to deal with the matter,
the right of the arbitrator to change or modify penalties found to
be improper or too severe may be deemed to be inherent in the
arbitrator's power to decide the sufficiency of cause. . ." (I
also disagree with the County's claim that law enforcement
officials are held to a higher standard of conduct. Because of
their unique job, they are held to a different standard.)
Arbitrator Harry H. Platt is thus quoted for stating:
In many disciplinary cases, the
reasonableness of the penalty
imposed on an employee rather than the existence of proper cause
for disciplining him is the question an arbitrator must decide.
That is not so under contracts or submission agreements which
expressly prohibit an arbitrator from modifying or reducing a
penalty if he finds that disciplinary action was justified, but
most current labor agreements do not contain such limiting clause.
In disciplinary cases generally, therefore, most arbitrators
exercise the right to change or modify a penalty if it is found to
be improper or too severe, under all the circumstances of the
situation. This right is deemed to be inherent in the arbitrator's
power to discipline and in his authority to finally settle and
adjust the dispute before him. Id.
See Platt, "The Arbitration Process in the Settlement of Labor
Disputes", 31 J. Am. Jud. Society 54, 58 (1947).
See, too, The Common Law of the Workplace: The Views of
Arbitrators, St. Antoine, Ed. (BNA, 1998), which states on p. 330:
Remedial Authority When
the Contract Is
An arbitral appointment
carries with it the inherent power to
specify an appropriate remedy. Unless there is clearly restrictive
language withdrawing the subject matter or a particular remedy from
the jurisdiction of the arbitrator, the arbitrator generally
possesses the power to make an award and fashion a remedy even
though the agreement is silent on the issue of remedial authority.
(Emphasis in original).
. . .
Here, Article 6, Section 1, does not mandate automatic
termination for employees who engage in "other flagrant
violations". The listing of certain offenses therein - such as
dishonesty, being under the influence of intoxicating beverages,
carrying unauthorized passengers, recklessness, or "other flagrant
violations" - thus only means that no warning notice needs to be
issued before employees can be disciplined for violating those
listed exceptions. Hence, even though there is no just cause
provision in the contract, an arbitrator under this language must
make an independent judgment as to whether a suspension and/or
discharge is warranted after the County has met its burden of
proving that an employee has engaged in such misconduct.
Given all of the mitigating factors here i.e., that Thums on
September 24 saw his wife kiss another man; that that put him in an
emotional state which precluded him from thinking clearly; that he
finally had enough sense to realize that he should not hit Cole
with the two-by-four; that he in fact never physically harmed
anyone; that he offered to pay for the three slashed tires; that
Cole himself did not want to press charges; that Thums himself
reported what had happened even though he had no legal obligation
to do so; that Officer Krueger did not view Thums to be a danger to
anyone when he spoke to Thums on the next day; that all criminal
charges against Thums were eventually dropped; that Thums
successfully completed an anger management course and otherwise
complied with all of the terms of his plea agreement - given all
that, I find that termination is too harsh a penalty for the highly
unique facts of this case. See City of Joliet, 112 LA 468
(Percovich, 1999); City of Mansfield, 105 LA 935 (Shanker, 1995);
City of Cleveland, 108 LA 912 (Skulina, 1997).
His termination therefore shall be converted to a five-day
unpaid suspension. That discipline takes into account all of the
mitigating factors listed above and it also represents the kind of
proportionality rightly displayed by the criminal justice system
when it dealt with Thums. A five-day suspension also would have
provided needed time off after the September 24 incident and it
also makes it very clear that Thums' misconduct notwithstanding
the great emotional stress he was under at that time will not be
tolerated in the future.
To rectify the County's violation of Article 6, Section 1, and
to restore the status quo
ante, the County is hereby required to
make Thums whole by immediately offering him his former position
and by paying to him all wages and benefits, including seniority,
that he otherwise would have earned after serving a five-day unpaid
suspension effective September 26 to the time of his
reinstatement, minus all monies that he would not have received but
for his termination. In addition, I shall retain my jurisdiction
for at least sixty (60) days to resolve any questions that may
arise over application of this remedy.
In light of the above, it is my
1. That the County violated Article 6, Section 1, of the
contract when it terminated grievant Jay S. Thums.
2. That grievant Jay S. Thums' termination shall be
converted to a five-day unpaid suspension.
3. That to rectify its contractual breach, the County shall
make grievant Jay S. Thums whole by taking the remedial action
stated above which provides for his immediate reinstatement and
4. That to resolve any questions that may arise over
application of this remedy, I shall retain my jurisdiction for at
least sixty (60) days.
Dated at Madison, Wisconsin this 15th day of June, 2001.
Amedeo Greco, Arbitrator