BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 2414, AFL-CIO
SCHOOL DISTRICT OF
(Tom Kasch Grievance)
Mr. John P. Maglio, Staff Representative, Council 40, on behalf
of the Union.
Quarles and Brady, LLP, by Mr. Sean M. Scullen, on behalf of
The above-captioned parties, herein "Union" and "District", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Muskego, Wisconsin, on June 25, 2001, at which time the parties agreed that I should
jurisdiction if the grievance is sustained. The hearing was transcribed and the parties
briefs that were received by August 27, 2001.
Based upon the entire record and arguments of the parties, I issue the following
The parties have agreed to the following issue:
Did the District have just cause to suspend grievant Tom Kasch
for one day and, if not, what is
the appropriate remedy?
The District operates a number of school buildings, including a high school which has
a three-bay garage where vehicle maintenance is performed and the Lake Denoon Middle
School which has
no such facilities, where grievant Kasch works as a maintenance person. Kasch, who has
employed by the District for about 23 years, was transferred from the high school to the
school in June, 2000. (Unless otherwise stated, all dates herein refer to 2000).
Head Custodian Mark Buelow, Kasch's direct supervisor, testified that he told Kasch
October 9 that he would have to change the oil on a District van in the high school garage on
October 13, and that he then also had to prepare the van for an emission test; that Kasch
whether he instead could do the work at Lake Denoon; that Buelow then checked with
for buildings and grounds Gary Rosploch, who said that the work had to be performed at the
school; and that he, Buelow, then relayed that fact to Kasch. Buelow also said that Kasch on
13 performed the work at Lake Denoon; that when he asked Kasch why he was not doing the
at the high school, Kasch replied that he "couldn't find the things he needed" in the high
that he therefore had to purchase certain items, i.e. a jack, washer solvent, a steel creeper,
solution and a drain pan. Kasch at that time gave Buelow the receipts for the purchases
Buelow on Monday, October 16, told Rosploch what happened and gave him the
In reply, Rosploch said he would look into the matter. Buelow on October 18 prepared a
memo for Rosploch which summarized his prior October 13 discussion with Kasch (District
2) and which stated, inter alia:
. . .
On October 13 at apx. 8:15 a.m., Tom left Lake Denoon to get
the van to the district office.
Some time later, he returned to the receiving room with the blue district van and he had
all the equipment needed to perform the oil change.
I had asked him if he had gone to the High
School as he was instructed to do. He said he had
and a garage bay was open, but there was a vehicle in it. Tom said there wasn't any rubber
oil wrench, oil pan, car jack, and tools for him to use. Because of this, he went out,
purchased all the
equipment, and then returned to Lake Denoon. Tom also said that if Gary Rosploch had any
questions, he should contact him directly.
I called Jim King to see if Tom made any
effort to contact anyone at the High School for help
in locating equipment or to move the vehicle from the bay. Jim King informed me that Tom
asked for help.
. . .
Kasch and Rosploch met with Kasch on October 20, at which time Rosploch told
Kasch that all of
the materials were at the high school. Buelow said that Kasch then changed his story by
he did not change the oil at the high school on October 13 because a certain wrench needed
oil change was not at the high school.
On cross-examination, Buelow testified that he did not object to any of Kasch's
purchases; that he then did not object to Kasch performing the oil change at Lake Denoon;
he then never warned Kasch that he could be disciplined for not doing the oil change at the
Supervisor Rosploch testified that while employees usually can purchase items up to
had nothing written as far as department policy". He said that he wanted the October 13 oil
done at the high school because: "I wasn't looking to buy new tools, set up a second
also said that he inventoried the high school garage on the week of October 16 after Buelow
what had happened, and that he then discovered that "the tools for oil changes were there,
was hanging on the wall, floor jack was on the floor, drain pan was over there. . .even oil
Rosploch said that he related that fact to Kasch on October 23 and that Kasch then
that he could not work at the high school because while "most of the equipment was there",
missing a wrench. Rosploch decided that Kasch was untruthful and decided to suspend him,
than fire him, in recognition of Kasch's 23 years of seniority.
Rosploch in an October 23 memo informed Kasch (District Exhibit 6),
. . .
It was most disturbing to find out that you knowingly and
intentionally, disregarded those
instructions. Specifically you purchased new equipment totaling over $170.00, and
make repairs at Lake Denoon School as you originally told Mr. Buelow you wanted to do.
stated to Mr. Buelow you did this because there was a vehicle parked in the garage bay and
wasn't any rubber gloves, oil wrench, oil pan, car jack, or tools for you to use. That was
not a true
statement. The workday following your vehicle repairs, I inventoried the garage and found
materials and equipment necessary to complete an oil change, except for the oil filter used on
In our conversation on Monday, Oct. 23,
you confirmed to me that most of the equipment
was located in the garage, but you did not have a wrench to finish the job. However, upon
the list of materials and equipment you purchased at the auto supply store, the "needed"
not on the receipt of purchased items.
. . .
Rosploch also testified about a July 9, 1999, meeting with Kasch over Kasch's
refusal to wait
to meet supervisor Jim King. Rosploch said that Kasch was then issued a verbal warning
On cross-examination, Rosploch acknowledged that the District had asked the Union
to reduce the number of maintenance positions (such as those occupied by Kasch) and
number of lower-paid custodians, and that the Union had refused to agree to that proposal.
that Kasch was disciplined for not carrying out an assignment, rather than for making the
he did; that Kasch keeps certain electrical testing equipment in his truck; that there is no
bay at Lake Denoon; and that Kasch on October 13 did not refuse to change the oil in the
also said that Kasch never saw his note relating to the July 9, 1999, oral warning (District
that the note does not appear in Kasch's personnel file; and that he could not recall whether
told Kasch he was receiving a verbal warning.
Kasch testified that when he reported to the educational support center on October 13
work on the District's van, he also was asked to fix the sliding door of the van; that he then
the high school garage to do the oil change on the van; that he then spoke to fellow
employee Joe Gehling who pulled a vehicle out of a bay so that Kasch could change the oil;
Kasch, then went to a store to purchase oil and an oil filter because he did not want to use
oil; that when he returned to the high school garage, he discovered that he did not have an
wrench; that he then tried to contact Gehling by walkie-talkie so that he could open up his
but to no avail; and that he then went back to the store. Asked what he did after going to
"to purchase the oil, filter and the oil itself" he replied: "I believe I drove directly to Lake
School, and I started to work."
He said: "I guess my way of thinking that day was that there is going to be more oil
in the future" at Lake Denoon School, which is why he brought a second jack, an oil pan
creeper all of which he purchased on his second trip to the store at a cost of about
why he made two trips to the store instead of one, he replied:
Because my first intention was to change the oil at the high
school. That's what I was told to
do, what I wanted to do. But in lieu of the fact that I needed the electrical equipment and
I made the decision to set myself up at Lake Denoon for the reasons I've already stated."
He added that when he returned to Lake Denoon to do the oil
change, Buelow "seemed kind of
happy" that he had bought the floor jack and that Buelow did not complain about either the
purchases or the fact that Kasch performed the oil change there. He also said that he told
he could not do the oil change at the high school because he did not have a wrench to
drain plug, an oil filter wrench, or the electrical test meter. He also said that he never
before had seen
a copy of Rosploch's July 9, 1999, letter (District Exhibit 5), relating to his supposed oral
and that he then "didn't realize I was being disciplined."
On cross-examination, he asserted that Rosploch was dishonest when he testified that
Kasch on July 9, 1999, that a failure to follow a supervisor's order constituted
could lead to discipline. He also said that Buelow specifically told him Rosploch did not
to perform the oil change at Lake Denoon; that Buelow never told him he could not purchase
additional materials; and that he never before had performed an oil change at Lake Denoon.
said that rubber gloves, an oil filter wrench to remove the drain plug, and the meter to test
door were not at the high school. He acknowledged that he fixed the sliding door without
any of the
materials he had purchased, but denied telling Buelow that he had purchased the materials
they were not at the high school.
POSITIONS OF THE PARTIES
The Union claims that the District lacked just cause to suspend Kasch because he
the oil change and thus was not insubordinate and because Buelow never told him on October
he could not perform the oil change at Lake Denoon or that he had improperly purchased the
equipment. The Union adds that even assuming arguendo that
some form of discipline was
warranted, a suspension was too severe a penalty because he had an unblemished record
fact that the purported July 9, 1999, verbal warning to him was never properly
recorded in his personnel file.
The District asserts that it had just cause to suspend Kasch because he "was
dishonest with management regarding the reasons for his insubordination." It also contends
insubordination is such a serious offense, the one-day suspension here was "inappropriate"
there is no basis for mitigating it.
In agreement with the District, I find that: (1), Kasch on October 13 told Buelow that
purchased the oil wrench, oil pan, car jack and tools because they were not at the high
(2), Kasch told Rosploch on October 23 after Rosploch told him that all that
equipment was at the
high school - that he did not perform the oil change at the high school because he had to buy
wrench to finish the job. I base this finding on the credible way that both testified and the
contemporaneous notes they prepared (District Exhibits 2 and 6). Having made those
it is clear that Kasch gave conflicting reasons for not performing the oil change at the high
that those reasons were false since Kasch, in fact, never purchased the wrench he claimed he
missing and since the high school also contained the other needed equipment.
I also credit Buelow's testimony that Kasch on October 16 told him he also did not
the van at the high school because a vehicle was in the bay a claim that is directly at
odds with what
Kasch testified to here. Moreover, Kasch acknowledged on cross-examination that Buelow
specifically told him that Rosploch did not want him to perform the oil change at Lake
that, furthermore, he never before had performed any oil changes at Lake Denoon.
knew that he was not allowed to work at Lake Denoon. His insistence on doing
constituted rank insubordination which was worthy of a one-day suspension.
It therefore is immaterial that Buelow on October 13 never admonished Kasch for
the tools and that he also never told him that he would be disciplined for performing the oil
at Lake Denoon, as Buelow credibly testified that he had no reason on October 13 to
Kasch told him. Hence, it was entirely appropriate for the District to discipline Kasch after
conducted an investigation into what really happened on October 13.
The Union nonetheless asserts that the suspension should be reduced because Kasch
never told on July 9, 1999, that he was being disciplined. Since Rosploch himself admitted
did not recall whether he then showed Kasch the July 9, 1999, letter and whether he was
given an oral warning, I find that that discipline cannot stand because it is axiomatic that an
must be told at the time that he/she is being disciplined. In addition, there is no merit to the
claim that it was not required to put the July 9, 1999, letter in Kasch's personnel file, as it
also is well
established that personnel files must contain all formal discipline. If purported
discipline is not in
those files, and if there is no proof that discipline was properly communicated at the time it
imposed, it cannot be considered valid. See Elkouri and Elkouri, How
Arbitration Works, (BNA, 5th
Ed., 1997), p. 926. Hence, it must be assumed, as the Union correctly argues, that
there was no prior
discipline at the time of Kasch's suspension.
Ordinarily, that might be enough to reduce a suspension since an employer ordinarily
follow progressive discipline. Here, though, Kasch's misconduct was so severe and so
no such reduction is warranted for such a serious infraction. Moreover, the District points
Kasch's long tenure already has been factored into giving him only a one-day suspension.
As a result, it is my
That the District had just cause to suspend grievant Tom Kasch for one
That the grievance is therefore denied.
Dated at Madison, Wisconsin this 5th day of October, 2001.