BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN CENTER DISTRICT
LOCAL 150, SERVICE EMPLOYEES INTERNATIONAL
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jill Hartley, 1555 North Rivercenter Drive, Suite 202, P. O.
Box 12993, Milwaukee, WI 53212, on behalf of Local 150.
Michael, Best & Friedrich, by Attorney Jesus Villa, 100 East
Wisconsin Avenue, Suite 3300,
Milwaukee, WI 53202-4108, on behalf of the District.
According to the terms of the 1999-2003 collective bargaining agreement between
Center District (District) and Local 150, Service Employees International Union, AFL-CIO
the parties requested that the Wisconsin Employment Relations Commission designate a
its staff to hear and resolve a dispute between them regarding the termination of Jeff
Hearing was originally scheduled for May 14, 2001, but was postponed at the District's
Hearing was rescheduled and held on June 18, 2001. No stenographic transcript of
was made. The parties agreed to file their initial briefs with each other post-marked July 13,
with a copy to the Arbitrator. The parties agreed to waive reply briefs. Briefs were
received on July
16, 2001, and the record was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issues should be determined in this case:
Was there just cause for the Grievant's discharge? If not, what is
the appropriate remedy?
Probation, Disciplinary Action and Representation
Section 1. All employees shall serve a probationary
period of 135 hours during which they may
be disciplined or discharged without recourse to the procedure set forth below or the
An employee shall not be discharged
without just cause. If an employee is to be disciplined, the
employee may request the presence of the steward. The course of disciplinary actions shall
Step 1. Verbal
2. Written warning, in triplicate, one copy to the employee, one copy to
the steward and one copy in the employee's file.
Step 3. Course of
Action Three day suspension.
Step 4. Course
of Action Termination.
Any dispute as to whether an employee
committed a particular offense or participated therein,
shall be subject to the grievance arbitration procedure provided it is presented in accordance
outlined grievance procedure. Exceptions to the progressive discipline system may be made
flagrant violations occur.
Section 1. The Union
recognizes that the Employer possesses the sole right to operate the WCD
and WCD services. The management of the facility and the
direction of the work force, except as limited by this Agreement,
is vested exclusively with the
Employer. This will not be used to discriminate against any member of the Union. The
management rights include, but are not limited to, the following:
To direct all operations of
the Employer, including the determination of means, methods and
personnel needed to provide efficient service;
To establish reasonable
To hire, evaluate, promote,
train and schedule employees in positions within the Department;
To direct the employees,
including assigning work and overtime;
To suspend, demote,
discharge, and take other disciplinary action against employees for just
To relieve employees from
their duties for just cause; and
The Union recognizes that
except as hereinafter provided, the Employer has the right to
subcontract work provided that jobs and duties historically performed by members of
the bargaining unit shall not be subcontracted and further provided that no present
employee shall be laid off or suffer an unreasonable reduction of hours as a result of
subcontracting. Notwithstanding the above, this does not prevent the Employer from
using a subcontractor to avoid the payment of overtime (on a temporary basis) or to
provide (on a temporary basis) a large enough complement of presently qualified
workers to accomplish the work that needs to be done.
RELEVANT WORK RULES
IV. EMPLOYEE CONDUCT
To ensure orderly operations and provide
the best possible work environment, WCD expects its
employees to follow rules of conduct that will protect the interests and safety of its clients,
employees, and the organization. Employees are expected to know and observe these rules
While no organization can be expected to
specify all potential forms of unacceptable behavior,
the following are examples of behavior which could result in disciplinary action, up to and
inattentiveness, negligence, or refusal to carry out written or verbal
assignments, directions, or instructions.
Abusing, striking, or deliberately causing mental anguish
or injury to clients, visitors, employees, or
Stealing, neglect, destruction or unauthorized use of
WCD owned or leased property, equipment or
Unauthorized lending borrowing or duplication of keys;
careless or improper use of keys; or failure
to report promptly loss of keys.
Disorderly or illegal conduct including, but not limited
to, the use of loud, profane or abusive
language; horseplay; gambling; or other behavior unbecoming a WCD employee.
Violation of health, safety and sanitation procedures,
directions and requirements.
Failure to provide accurate and complete information
when required by management or improperly
disclosing confidential information.
Inappropriate dress, grooming, or personal hygiene
including, but not limited to, the improper use
of prescribed uniform, badge, or other article of clothing of identification.
Unauthorized posting, changing or removal of posted
material or unauthorized distribution of written
Entering or permitting others to enter restricted areas
without authorization or failing to comply with
posted instructions in various areas.
Unauthorized solicitation for any purpose while on duty
or on WCD property.
Reporting to work or while at work manifesting any
evidence of having consumed alcoholic
beverages or illegal drugs or having possession of such items while on duty or on WCD
Unauthorized possession of weapons.
Failure to give proper notice when unable to report for
or continue duty as scheduled, tardiness,
excessive absenteeism, or abuse of sick leave privileges.
Requesting, retaining, or failing to report an offer of a
bride [sic] or gratuity.
Failure to submit upon request to the inspection of
packages or containers taken form [sic] or into
the work area.
Failure to follow the policies set forth in this Handbook.
The purpose of this policy is to state WCD's position on
administering discipline equitably and
consistently. Undoubtedly, the best disciplinary measure is the one that does not have to be
Also, without doubt, the best discipline comes from good leadership and firm, fair
supervision at all
Typically, disciplinary action will call for
any of four measures depending upon the severity of
the infraction and the number of times the particular employee has committed the offense in
or any other offenses: verbal warning, written warning, suspension, dismissal.
The major purpose of any disciplinary
action is to correct the situation and prevent recurrence.
Therefore, the method of disciplinary action chosen will be the one most likely to accomplish
overall purpose in the particular situation. As the situation demands, WCD reserves the right
any, all or none of the aforementioned disciplinary measures. Depending upon the severity
violation(s) and/or the consequences of the prohibited conduct, discipline may be accelerated
and including immediate termination for any violation of these rules.
. . .
"Tardiness" is defined as the failure to report for work or be at
one's designated work station at
the starting time of the shift; failure to report within 30 minutes of call-in; reporting back to
from meal periods or work breaks; or leaving prior to the end of a scheduled shift, including
Example of tardiness, which may be
considered a violation of WCD's standards of employee
conduct may include, but are not limited to:
Occurrence of tardiness which
establish a pattern, such as regular tardiness on certain days of the
Other patterns of tardiness.
"Banking" of break or lunchtime, for purposes of early
departure, is not allowed without prior
approval from your supervisor.
. . .
Our first impression is one of the most valuable tools we have in
helping to make guests and
clients fell welcome and appreciated. It is very important for us to focus on providing the
possible at all times. This includes constant awareness of how we look when on duty within
All employees are expected to look their
best. If you have been issued a uniform, it is your
responsibility to wear it appropriately and at all times when working in the complex. This
keeping all items clean and neat in appearance. If you have back-up pants and/or shirts, an
should be kept on site in case you need to change during the day. If you are in need of
articles, please contact your supervisor for assistance.
For those employees that have not been
issued a uniform, you will be expected to dress in
appropriate business attire. This includes dress slacks or skirt, dress shirt with tie or blouse,
shoes, and suit coat or sport coat. There is no "dress down" day permitted.
For outside contracted services/employees
working for WCD, it is expected that they also wear
proper attire when on duty within the complex. All personnel require proper hygiene.
If there is any exception required to the
above, it must be cleared through the President's office.
Only clothing that allows a staff member to
deal with a variety of job duties in a safe manner will
be worn. The clothing shall be neat, clean, and comfortable. Clothing should not be
modified in any
Clothing with the following writings,
pictures, or advertisements are prohibited:
Advertisements of alcoholic
beverages, drugs, cigarettes, and any type of gang affiliations.
Jokes or derogatory
comments about sex, religion, race, creed, color, conviction record,
national origin or ancestry, handicaps, sexual orientations, marital status, political
affiliation or military service or any other class protected by law.
. . .
Loafing, Loitering and
In order to function and provide quality service to our customers,
WCD depends on its
employees to pay attention to detail and be focused on their assigned responsibilities
are on work time; it is equally important not to distract other employees from their duties.
Consequently loafing, loitering and reading non-work materials during work time is
Examples of prohibited conduct may include
but are not limited to:
engaging in unauthorized visiting during work time.
Loitering in or on the premises before, after or during scheduled work shifts.
Reading unauthorized materials during work time. Reading material provided
by WCD for
job-related purposes is not covered under this rule.
Such conduct may result in discipline, up to
and including, immediate termination.
. . .
The facts surrounding the incident for which the Grievant was discharged are not
On October 16, 2000, the Grievant (a set-up crew employee) and at least four other set-up
of Wisconsin Center District (WCD) were observed by a WCD security guard watching TV
working hours. The security guard identified the Grievant, Shawn Hall, Robert Rydlewitz,
Witkowski and Lucious Robinson all WCD employees, engaged in watching TV on this date.
addition, two unidentified black employees were also reportedly involved in the incident. On
evening, these employees had worked through their first break and apparently decided to
at a later time. The Grievant admitted watching TV on October 16th during
his working hours. It
is undisputed that the Grievant did not engage in any other misconduct involving this
1/ During the District's investigation of the
incident, WCD employee Lucious Robinson used profanity and
threatened the security guard who observed him watching TV on
It is also undisputed that Knutsen's past work record included the following
Verbal warning for being tardy on 3/17/97 and 3/22/97.
Written warning for reporting to
work one hour late on 3/23/97.
Three-day suspension for reporting
20 minutes late to work on 5/5/97 and reporting 30 minutes late
to work on 5/6/97.
Sent home early on 9/17/99 and
given a three-day suspension thereafter for insubordination for not
having his hair in a pony tail on 8/20/99, 8/21/99 and 8/30/99.
The dispute between the parties in this case is the level of discipline meted out
Grievant for his part in the incident on October 16, 2000. In this regard, the evidence
the WCD completed a full investigation of the October 16th incident and
terminated the Grievant on
November 21, 2000, based upon his prior disciplinary history and the incident of October
District Representative Sleaper stated herein that in determining the appropriate
for the Grievant's conduct on October 16th, he did not consider the
staleness of the prior
warnings/discipline against the Grievant because WCD does not expunge employee personnel
or discount old disciplinary actions when it decides how to discipline an employee for a new
In this regard, Sleaper stated under cross-examination questions that the District would
warnings and discipline that were 12 and even 15 years old against employees in determining
punishment for recent misconduct of that employee.
Sleaper asserted that in one prior grievance, a local union officer had stated that
actions over one year old could not be considered by the District. Sleaper stated this was
and that the contract did not support such a reading. Sleaper noted that the Union did not
particular case to arbitration. However, Sleaper could not recall who the grievant was, how
his/her prior disciplinary actions were or why the Union dropped the grievance.
In addition, Sleaper stated that in negotiations for the 1999-2003 collective bargaining
agreement, Local 150 Union representative Darryl Evans (now deceased) asked Sleaper and
whether the employer would consider putting something into the contract to remove prior
from employee files at some point. The Union never made a formal proposal, either written
on this point. At the time, the District refused to consider this suggestion. Sleaper could not
at which of three separate Local 150 bargaining sessions the issue was raised by Evans. 2/
2/ The District has three contracts in three
Local 150 units (which are bargained separately), the terms of
which, vary significantly from one another.
Sleaper stated that because Hall, Rydlewitz and Witkowski had no prior disciplinary
in their files, they received written warnings for the October 16 incident. Also, because
one written warning (issued on August 31, 2000) in his file the District gave Robinson a
suspension for the October 16 incident. Finally, Sleaper stated that all employees are given a
of the District's July, 1999 employee handbook. Indeed, Knutsen signed a form indicating
had received a copy of the handbook. Sleaper admitted, however, that the District has not in
negotiated with the Union regarding the contents of the handbook.
POSITIONS OF THE PARTIES
The District asserted that the issues in dispute in this proceeding are narrow and few.
regard, the District noted that the Grievant admitted the wrongdoing he was accused of; that
was no question that the investigation had been fairly conducted; and the District believed the
had no dispute that it had a progressive disciplinary policy that provides for discharge after a
three-day suspension. Thus, in the District's view, the only issue in this case was whether
the District had
properly considered the Grievant's September, 1999 three-day suspension in terminating
wrongdoing he engaged in along with other WCD employees on October 16, 2000.
The District anticipated that the Union would argue that prior disciplinary actions
against Knutsen should not have been considered by the District in determining that he
discharged for the October, 2000 incident. The District urged that there was no support for
argument. In this regard, the District noted that most arbitrators interpret and apply the
bargaining agreement and do not add to or modify the agreement. Arbitrators, as a general
to collective bargaining the addition, deletion or modification of contractual provisions. The
argued that the undersigned should follow this path in the instant case.
The District contended that the Union is attempting to achieve in arbitration what it
successfully achieve in bargaining. In this regard, the District noted that the contract has no
to remove disciplinary action from employees' files after a certain period of time has passed.
Union wanted such a provision in the collective bargaining agreement and suggested this, but
District refused and no such provision went into the most recent contract between the parties.
In addition, the District noted that the Union attempted to raise this issue again
filing of a 1999 grievance over a three-day suspension, by asking that the disciplinary
regarding that grievant, which were more than one year old, be removed from his/her
The District refused to do this and stated that the contract does not provide for
such removal of prior disciplinary actions. The Union later dropped the grievance. In
circumstances, the District urged that the grievance should be denied and dismissed in its
the District followed its normal procedures in assessing the penalty against the Grievant and
The Union argued that the District discharged the Grievant without just cause because
termination penalty was too harsh for the Grievant's misconduct. In addition, the Union
the District's reliance on past discipline of the Grievant, some of which was more than 3.5
for unrelated misconduct should not, in fairness, form the basis for the Grievant's discharge
concerning the October 16, 2000 incident.
The Grievant's prior disciplinary record shows that the District's "strict" progressive
disciplinary system is not so strict. In this regard, the Union noted that the Grievant had
verbal warning for being tardy twice, one written warning for another tardiness incident, one
three-day suspension for tardiness and another three-day suspension for failing to put his hair
in a pony tail,
all prior to the October 16, 2000 incident. The District could have discharged the Grievant
pony tail misconduct but it failed to do so. Just as the pony tail offense committed by the
did not warrant immediate termination nor does the instant offense warrant immediate
The Union noted in this regard that the other participants in the October 16, 2000 incident
As the District has the burden to prove just cause for the Grievant's discharge by a
preponderance of the evidence, the Union urged that the record failed to show that the
just cause for the Grievant's discharge by its unfair use of stale and unrelated warnings to
"progressive discipline." In this regard, the Union conceded that the contract does not limit
a warning or disciplinary action is effective in an employee's file so that it could technically
in consideration of progressive discipline forever. But, this does not mean that any
actions, no matter how old or for what offense, should be used against an employee. The
noted that the verbal, written and the first three-day suspension were received by the
than three years ago and were all for the offense of tardiness, unrelated to the incident of
2000. The Union further noted that Human Resources Director Sleaper indicated that even if
disciplinary action were ten or more years old and the employee had no disciplinary action
ten year period, the District would still use the old disciplinary action in determining the
a new incident of misconduct by the employee. The Union urged that this approach is
and violates the principle of just cause, on its face.
The Union contended that the purpose of discipline is generally to notify employees
unacceptable behavior and to give them a chance to correct their conduct so that they can
successful employees. Indeed, the Employer's handbook affirms this principle. After
the Grievant had received the verbal, written and the first three-day suspension, the
Union noted he
had no more incidents of tardiness, proving that he learned his lesson in this regard. The
that the District's reliance on these disciplinary actions as a basis for terminating the
years after the last tardiness incident, was certainly unfair.
Thus, it appears the District is using progressive discipline not to correct employee
but to terminate employees for any four offenses. Such an excessively harsh
approach, the Union
noted, is likely to be counter-productive with unit employees. That is, employee awareness
excessively harsh penalties meted out by management may simply cause employees to feel
management is unfair and destroy good morale and good discipline among employees,
improving employee conduct.
The Union denied that it attempted to negotiate a provision limiting the time that
could be considered by the Employer for purposes of progressive discipline. In this regard,
noted that no written proposal was made by the Union on this particular point and none was
submitted by the District herein. The record evidence showed that Union Representative
merely asked for the District's position on the issue and the District said it was not interested
pulling old disciplinary actions and no further discussion occurred on the subject. In
Union noted that Human Resources Director Sleaper could not remember in which of the
collective bargaining units this discussion occurred. Sleaper also admitted that these
have been made in one of the other two units' collective bargaining negotiations.
Regarding the 1999 grievance raised by the District, the Union noted that the local
officer's comments were not clearly recalled by HR Director Sleaper. Indeed, Sleaper could
recall the grievant involved in the case or how old the prior disciplinary actions of that
or why the grievance was ultimately dropped by the Union. Therefore, the Union urged that
was no credible evidence to support the District's contention that the Union waived its right
by dropping the prior grievance.
The Union asserted that it is the responsibility of this Arbitrator to determine if the
fits the crime and to set aside the Grievant's discharge if the penalty is unduly severe or
in the circumstances of this case. Here, the District admitted the misconduct which the
engaged in on October 16, 2000, was not normally the type of activity that an employee
discharged for outright. The Grievant cured his tardiness problem three years ago. The fact
Grievant, approximately one year ago, failed to put his hair in a pony tail should not fairly
the Grievant's discharge for the type of misconduct he engaged in on October 16, 2000.
Union noted that the Grievant admitted his misconduct on October 16th --
did not resist or run away
or attempt to hide himself or commit any other wrongful acts in order to avoid the penalty
In essence, the Union urged that the District, contrary to its own handbook, was
the Grievant for the sake of punishment. Therefore, the Union sought a lesser penalty for
Grievant, a make whole remedy and reinstatement to his position.
The District submitted evidence that the Union had made a proposal in bargaining for
effective labor agreement, which was ultimately rejected by the District, that the District
prior disciplinary actions which occurred more than one year prior to the most recent
an employee. The District asserted id had rejected this proposal. The District also proffered
that the Union had failed to pursue a 1999 grievance in which the Union had argued that no
given to prior disciplinary actions (more than one year old) of that grievant. The District
argument and the Union dropped the grievance. The District argued that by these actions,
essentially waived its right to argue that the Grievant's prior disciplinary warnings should be
disregarded by the Arbitrator herein. For the reasons stated below, I disagree.
First, the record made by the District is insufficient to prove a Union waiver. In this
it should be noted that the record showed that the Union made no formal written or verbal
to amend the labor agreement to expunge past disciplinary actions. Indeed, Mr. Sleaper
former Local 150 Agent Evans merely asked the District if it would consider putting
the contract to remove prior warnings from employee files. The District failed to offer any
notes or a written Union proposal on this point to support its assertions. In addition,
Mr. Sleaper was
unable to specifically state that Evans' comments were made regarding the contract relevant
case, and not one of the other two Local 150 contracts which separately cover other District
bargaining unit employees. In these circumstances, the clear evidence that is required to
waiver was not present.
Similarly, in regard to the 1999 grievance, I note that when the conversation occurred
regarding past disciplinary actions, it was between Sleaper and Local Union officers, and no
150 Agent was present. Furthermore, the District presented no documentary evidence to
argument on this point. Indeed, Sleaper's inability to fully identify the case as to the
how old his/her prior disciplinary actions had been, or why the Union dropped the grievance,
this evidence unreliable and insufficient to bind the Union on a waiver argument. Therefore,
the District's arguments on these points.
I turn now to the central dispute in this case -- whether the District had just cause to
discharge Mr. Knutsen. An initial inquiry whenever just cause is involved is whether the
was so serious that it called for immediate discharge. In this case, I note that
Mr. Sleaper stated that
had Knutsen had no prior discipline on his record, he would have received a written warning
misconduct as did Rydlewitz, Witkowski and Hall. Therefore, the misconduct of October
in the District's view, did not call for immediate discharge.
A close analysis of the labor agreement shows that Article XVI, Section 1, states:
An employee shall not be discharged without just cause. . . .
Exceptions to the progressive
discipline system may be made where flagrant violations occur.
Article XVI, also states that "the course of disciplinary actions shall be" in four steps:
written warning, three-day suspension and termination. This is strong language. However, I
that Article III, Grievance and Arbitration, does not contain any language
indicating that arbitrator
cannot modify a penalty assessed by the District if mitigating circumstances exist in the case
that that the penalty assessed is unreasonable.
It is because Knutsen had one verbal warning, one written warning and a three-day
for five instances of tardiness, all of which occurred in 1997 as well as a second three-day
received in 1999 for failing to keep his hair in a pony tail on three occasions, that Knutsen
for the incident of October 16, 2000. The District has asserted that it has consistently
progressive discipline, no matter what the offense, so that an employee can expect to receive
verbal warning, one written warning and three-day suspension before being discharged for
incident of misconduct. However, Mr. Knutsen's record shows that progressive
discipline has not
been consistently followed by the District.
The evidence in this case showed that in 1997, Knutsen was absent/tardy five times
received one verbal warning, one written warning and a three-day suspension therefor. This
leads me to conclude that when Knutsen has been disciplined in the past, he has changed his
and learned his lesson. This is precisely what the District's work rules were intended to do
disciplining employees -- "to correct the situation and prevent reoccurrence." It is significant
no evidence was placed in this record to show that when Knutsen was absent/tardy in 1997,
actually received money (pay) for time he did not work. Therefore, I conclude that absent
evidence to show that Knutsen was paid for time he did not work in 1997, the misconduct
in the instant case -- watching TV while in paid status -- is a separate and different type of
infraction. In addition, I am also convinced that Knutsen's violation of the District's dress
should also be considered a separate and distinct infraction. Thus, neither of Knutsen's prior
of difficulty in working at the District are comparable to the type of misconduct he engaged
October 16, 2000.
3/ I note that nowhere in the District's work
rules does it mention that long hair must be kept in a pony tail.
Rather, in the dress code section, the only reference possibly applicable to Knutsen's prior
infraction was the
following: "all personnel require proper hygiene."
The District has asserted that it would find even unrelated disciplinary actions more
years old to be relevant and applicable in determining discipline. What the District does or
consider relevant and applicable in its deliberations regarding discipline of employees is a
distinct question from the inquiry a third-party neutral must make in determining whether just
existed for the District's actions. Therefore, the lengthy arguments of the District that it
does not and
has not expunged or disregarded prior
disciplinary actions of employees does not mean that in applying just cause principles,
may not find that the District has fallen short of fair and reasonable conduct in assessing the
penalty against Knutsen.
The Union has argued that the absenteeism/tardiness disciplinary actions are not only
unrelated but are also stale and should not be considered in determining a just cause penalty
Knutsen's misconduct on October 16, 2000. In the circumstances of this case, I agree. As
Arbitrator in this case, I am bound to analyze the District's actions to determine whether they
met the just cause standard in assessing the penalty of discharge, the most serious penalty an
employer can mete out. It is significant to this Arbitrator that Mr. Knutsen's
problems all occurred and were cured in 1997. Mr. Knutsen has had no reocurrence of this
misconduct. In addition, I note that in regard to Mr. Knutsen's alleged violation of the
dress code, the District's issuance of a three-day suspension to Knutsen in 1999, ended his
in that area of the District's work rules as well. Thus, discipline has had the intended affect
Knutsen -- to correct the situation and prevent reoccurrence.
Although the conduct Knutsen engaged in on October 16th is
I am in agreement with
the District that that conduct was not, in and of itself, the type of conduct which called for
discharge. In addition, this was, according to this record, the first time that Knutsen
conduct whereby he attempted to take wages for time he did not work. As this record
that Knutsen has in the past learned his lesson and mended his ways, I believe that he can do
with the type of misconduct he engaged in on October 16, 2000. Indeed, Knutsen would be
advised to make sure that he does not run afoul of the District's rules in the future.
note that in the processing of the instant case, the Grievant admitted watching TV on October
during his work hours; and that he did not engage in any other misconduct involving that
Finally, the District failed to prove it has consistently applied progressive discipline in the
Therefore, based upon the relevant evidence and argument in this case, I find that significant
mitigating circumstances exist to militate against terminating Knutsen for his misconduct on
16th and I issue the following
There was not just cause for the Grievant's discharge. The Grievant shall serve a
suspension without pay for the misconduct he admittedly engaged in on October 16, 2000.
Thereafter, he shall be reinstated with full back pay, benefits and all contractual rights.
Dated in Oshkosh, Wisconsin, this 4th day of September, 2001.
Sharon A. Gallagher, Arbitrator