BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEBOYGAN COUNTY HEALTH CARE CENTER
LOCAL 2427, AFSCME, AFL-CIO
Ms. Helen Isferding, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1207 Main
Avenue, Sheboygan, Wisconsin 53083, on behalf of the labor organization.
Ms. Louella Conway, Personnel Director, Sheboygan County,
615 North Sixth Street, Sheboygan,
Wisconsin 53081, on behalf of the municipal employer.
Sheboygan County Health Care Center Employees, Local 2427, AFSCME, AFL-CIO
union") and Sheboygan County ("the county") are parties to a collective bargaining
provides for final and binding arbitration of disputes arising thereunder. The union made a
in which the county concurred, for the Wisconsin Employment Relations Commission to
a member of its staff to hear and decide a grievance over the application and interpretation of
terms of the agreement relating to discipline. The commission appointed Stuart D. Levitan
as the impartial arbitrator. Hearing in the matter was held in Sheboygan, Wisconsin on
2001; it was not transcribed. The parties submitted written arguments, the last of which was
on October 26, 2001.
The union states the issue as follows:
"Did the employer have just cause to give Linda Skelton a
one-day suspension? If not, what is
the appropriate remedy?"
The employer states the issue as follows:
"Did the employer violate the labor agreement when it disciplined
the grievant, and if so, what
is the appropriate remedy?"
I state the issue as:
"Did the employer violate the collective bargaining agreement
when it issued Linda Skelton a
one-day suspension? If so, what is the appropriate remedy?"
Management Rights Reserved
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
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
not to be justified, the employee shall receive all wages and benefits due to him/her for such
of time involved in the matter.
. . .
In keeping with the above, the Employer may adopt reasonable
rules and amend the same from
time to time, and the Employer and the Union will cooperate in the enforcement thereof.
Sheboygan County Institutions
XVII Progressive Discipline
. . .
2. Examples of Work Rule Infractions
. . .
i. Creating a disturbance on
work premises by fighting or other conduct
which adversely affects morale, production or maintenance of proper
. . .
4. Discipline Recommended: For
consistency in administering discipline County-wide, the
following discipline standard should be considered for violation of the above
The following recommended sequence of steps may be
altered by the Administrator
depending upon the severity of the infraction.
Creating a disturbance on the work premises
by fighting or other conduct which adversely affects
morale, production or proper discipline:
1st offense 1 day off without pay
2nd offense 5 days off without pay
3rd offense - Discharge
Among its other activities, Sheboygan County operates a
183-bed skilled care facility known
as Rocky Knoll Health Care Facility. The grievant, Linda Skelton has worked there since
6, 1975, the first 15 years as a nurse's assistant, the last 11 or so as a housekeeper. This
arises out of an incident at the facility on September 15, 2000,
involving Skelton, maintenance worker Scott Ruh and maintenance supervisor Richard
A day or two earlier, Skelton, Ruh and another housekeeper had discussed their need
furniture in one resident's room to accommodate personal furniture the resident's family
bringing in on Friday. Since the other housekeeper would be off on the
15th, it was agreed that Ruh
and Skelton would see to the task of moving the bed. 1/
1/ Ruh testified the
earlier conversation took place on the 14th; Skelton had it occurring "at the
Wednesday afternoon break," which would
have been the 13th. This discrepancy has no bearing on the outcome of this
As it happened, Ruh and a nurse moved the bed, without any involvement by
Because they did not take care to put the bed on wheels when they moved it, the bed
There is no dispute that Skelton was not involved in the damage to the floors. The
do dispute, however, how and when that came to be, and what happened next.
Ruh testified that "late in the afternoon," near the end of his shift, he was "called by
nurse" to move the furniture "as soon as possible." He acknowledges that he could have
Skelton for assistance, but he chose not to; the nurse, he said, "told me now," because the
end of the
shift was looming.
Ruh also testified that he felt Skelton had been creating "a very hostile environment"
at work, giving him "looks and everything," and making problems for him with various work
The union challenges this narrative, both in substance and spirit. The truth, the union
that it wasn't near the end of the shift, so there was no rush, and that it was Ruh rather than
who set the assignment in motion. After Ruh foolishly did the work without calling for
and damaged the floor, the union asserts, he then picked a fight with her when she
on it. Simply, the union claims the essential culprit is Ruh, whose personal and professional
inadequacies created the incidental, and whose own testimony exposes him as lacking in
and bearing the brunt of the blame for the incident.
The union notes that Ruh's written account of the ensuing encounter in the shop room
time-coded at 1:23 p.m. (see below) Since the encounter itself took place
after the furniture had been
moved, setting the encounter at 1:23 means that Ruh and the nurse moved
the furniture hours before the end of the shift. Ruh's own writing, the union states,
rebuts his sworn
testimony on a critical point in his narrative.
The union also challenges Ruh's testimony that it was the nurse who had directed him
expeditiously to move the furniture. Skelton provided hearsay testimony that the nurse in
had said that it was Ruh who asked her for assistance, a scenario the union suggests is much
likely. And the fact that Ruh admittedly avoided asking Skelton for assistance, the union
is but another manifestation of his paranoia and hostility towards her.
The undisputed narrative continues with Skelton's discovery that the bed had
been moved and
the floor scratched, whereupon she went to talk with Tarman in his maintenance shop area.
found him there with Ruh, which is where the narratives again diverge.
Ruh testified that Skelton "came through the door, hands out, red in the face and
really mean. She had a very mean demeanor. She barged right into the room where I was
with my supervisor. She was beet red, and she slapped her hands down on the table. She
asked if I
moved the bed and I said I had, because we needed the bed moved. She asked if we'd seen
had put scuff marks in the floor, and I said yes. I told her all the floors looked bad."
Ruh further testified that the supervisor, Tarman, "didn't say a word during the
that when he "went to walk around her, she grabbed his shirt when he tried to get out of the
She said, 'don't go anywhere, I'm not finished.'"
Ruh testified that he reported the incident to the assistant director of nursing on his
initiative, and that he received a one-day suspension for creating a disturbance in the
discipline he grieved but accepted short of arbitration.
Skelton doesn't recall it like that at all. She says she was looking for Tarman only to
about the scratched floor, when she "saw him in the maintenance shop across the hall talking
I went up to discuss what had happened. I asked Scott why he moved the bed and put a big
in the floor, and he just went off on me, yelling and screaming, and using vulgar language."
Skelton does agree with Ruh that Tarman just "stood there and didn't say a word,"
started to leave. But then, the recollections again differ.
"I just put my finger on his shoulder and said, 'please don't leave,'" she testified,
demonstrating at hearing by placing a single forefinger out. It was then, Skelton said, that
"all the floors look like hell anyway, what's one more." Skelton said she then "said to Dick
like to see you before you leave today, and he said ok."
Skelton said Tarman later explained the flare-up: "Dick said Scott's under a lot of
testified, adding, "I asked Dick if I did anything wrong and he said no." Ruh, she said,
"was the one
that blew up and started yelling. When he didn't stop, I just left."
Tarman, who started in the maintenance department in 1979, became the maintenance
supervisor in 1987 and retired in April 2000, testified that he and Ruh "were discussing
failures in the maintenance shop when Linda came in and started talking to Scott with a
Then Scott came back in a raised voice. I said, 'excuse me, I'm going to leave.' Then
Linda put her
hand on my shoulder and said she wanted to talk to me. I left. She wasn't trying to restrain
said don't leave."
Tarman testified he did not see Skelton with her hands balled up angrily as described
but that "she was upset," and that "she came in with a raised voice." He also testified that
heard Ruh use vulgar language, as testified to by Skelton.
Tarman said he neither told Skelton to be quiet at the time nor reported the incident
Excluded from the bargaining unit as a supervisory employee, Tarman also received a
suspension, which he accepted. "It was my position to see that there were not any disruptions
workplace, and I did not do that," he testified.
Following the incident, Ruh prepared the following hand-written note:
13:23 Linda came in maint(enance) and
verbally abused myself in front of my supervisor.
When Richard went to walk around her she
grabbed his l(eft) shoulder and told him not to move
or go anywhere. Then she continued to belittle myself and the maint(enance) dept.
On October 2, 2000, Rocky Knoll Administrator Dale Pauls issued Skelton a one-day
suspension without pay, explained in the following Employee Report:
On September 15, 2000 between 1:00 p.m. and 1:30 p.m. a
confrontational discussion occurred
between Linda and Scott Ruh, Maintenance Worker. It led to raised voices. Linda was
confrontational in her approach to Scott. She used a raised voice and would not listen to a
from Scott. Linda requested the Maintenance Supervisor remain in the room. She did so, by
her hand on his shoulder and telling him not to leave. Linda did not conduct herself
during this meeting. Her actions contributed to a disturbance that adversely affected the
production in the workplace.
Skelton appended the following response to
I am in total disagreement with this
suspension and do not agree with the above statement of
On October 13, 2000, the union filed a grievance on Skelton's behalf. The grievance
as the "applicable violation" that there was "unjust, unfair treatment in the workplace," and
"adjustment required," that Skelton "be made whole." On October 16, administrator Pauls
the grievance, as follows:
Denied. Employee engaged in a conversation with another
employee in which words were
exchanged and tones of voices displayed that were inappropriate and led to a disturbance in
On March 29, 2001, County Personnel Director Luella Conway wrote union staff
representative Helen Isferding as follows:
The above mentioned grievance was heard at the Personnel
Director step on Friday, March 16,
After review of the information presented,
the grievant engaged in inappropriate discussion with
another employee and her supervisor. All parties involved were disciplined regarding the
The discipline is appropriate. The grievance
If you have any questions, feel free to
On May 15, 2001, Conway wrote to Isferding as follows:
The Personnel Committee at their meeting of Tuesday, May 1,
2001 considered the above
The information presented indicated that a
verbal discussion between the supervisor and two
employees was disruptive to the individuals involved and all acted inappropriately with
regard to this
All three individuals were disciplined based
on the improper behavior, which was appropriate.
There is no violation of the labor agreement, the Personnel Committee carried a motion to
If you have any questions, feel free to
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the union asserts and
The employer did not suspend Linda Skelton for just cause. The
crux of this case is whether the
employer can prove the accusation that her actions contributed to a disturbance that adversely
affected the morale and production in the workplace and whether Skelton is a more creditable
than the employer's witnesses.
No one ever told Skelton she was causing a
disturbance in the work place. If she did cause the
alleged disturbance, the supervisor should have put her on notice at the time of witnessing
incident. In reality, what she did was question a fellow employee in the presence of her
Common sense would dictate that she can question why a plan to move furniture without
the floor failed. There is no rule or notice as to questioning why some work project went
supervisor, who has been a supervisor since 1987, had the responsibility of putting Skelton
that she was causing a disturbance, which the union maintains she was not. No testimony
that the supervisor made any attempt to intervene. The employer thus failed the notice test.
The employer has also failed to meet its
burden of proof. That the supervisor did not
immediately report the incident attacks the credibility of any testimony that any wrong-doing
happened. The supervisor didn't report the incident because it was nothing that adversely
the morale and production in the workplace. This is the first, most glaring, weighty piece of
that the incident was just being blown up by Mr. Ruh. The supervisor never reported the
incident, nor made any attempt to intervene; indeed, he was walking away when Skelton
to stay by touching his shoulder. Supervisors don't just walk away in the middle of two
fighting. Sounds like there was no fight.
Further, the credibility of maintenance man
Ruh is suspect, in that he gave strange, paranoid-like
testimony on the activities of Skelton. He believed she was "checking up on him,"
orders as part of a plot against him. His feelings seem exemplified by his parting shot to
"all the floors look bad." The administrator testified that this was not the first time Ruh had
to him complaining about Skelton. Here, he saw a chance to get her in trouble, and he took
Ruh's credibility is further damaged by his
failure to follow the furniture removal plan and his
testimony containing an inaccurate time frame.
Further, Skelton's demeanor, as testified to by both Tarman and
Ruh, was not a demeanor to
cause a disturbance that adversely affected the morale and production in the workplace. Ruh
said she raised her voice but sounded "annoyed." Tarman never told her to lower her voice.
was no testimony that anyone other than the individuals involved heard the conversation in
workplace. There was no motive for Skelton to be angry, since she wouldn't even have to do
work to repair the floor damage.
There is no testimony in the record of how
or who's morale and production was adversely
affected by the conversation. The incident only lasted one to two minutes.
It is clear that Ruh is biased against
Skelton, and his testimony is not credible. There is a
difference in causing a work disturbance and questioning why a job was performed badly.
employee who has pride in her work area should not be punished for asking what went
supervisor saw nothing to act upon, and he has the first responsibility.
The grievance should be sustained and the
grievant made whole.
In support of its position that the grievance should be denied and the discipline
employer asserts and avers as follows:
There are seven tests to establish the basic elements of just cause.
The county answered all those
tests affirmatively, establishing that it had the "proper cause" to discipline as provided for in
collective bargaining agreement.
The test for notice was satisfied because the
employer has an established policy and procedure
manual which outlines the disciplinary procedure. This policy indicates that a disturbance in
workplace is cause for a one day suspension.
The test for reasonableness was satisfied
because the employer expects certain behavior. Raised
voices and physical touching of a supervisor are not acceptable.
The test for investigation was satisfied
because the administrator conducted an investigation and
interviewed all three participants in the incident. After obtaining their statements, it was
that an incident occurred.
The test for fair investigation was satisfied
because the administrator gave all three the
opportunity to tell their side of the story. It was a fair and complete investigation.
The test for proof was satisfied because the
statements indicated that the incident did occur, there
is no question about that.
The test for equal treatment was satisfied because the employer
followed the rule precisely. All
three employees, including the supervisor, received the same discipline of a one day
The test for reasonableness of the penalty
was satisfied in light of the policy manual and the
seriousness of the issue.
The employer's actions were not arbitrary
or capricious. The facts respond affirmatively to the
test for just cause. The one day suspension for Ms. Skelton for a disturbance in the
appropriate and does not violate the collective bargaining agreement. The grievance should
In response, the union posits further as follows:
Discrepancies in Ruh's account of the time and manner in which
the bed was moved challenges
his credibility and taints his testimony. Further, the fact that it was Ruh and not Tarman
the incident shows that Tarman didn't report the incident because it was not inappropriate.
felt free enough to even leave the area.
In response, the employer posits further as
The union errs in suggesting that Skelton
was not given notice that it was improper to cause a
disturbance in the workplace. The policy manual is clear that such action warrants a one-day
While it may be true that Tarman never told
Skelton to stop her behavior, it is also true that after
the investigation Tarman also received a suspension because the administrator felt he had not
the situation properly. All three involved in the incident received a one-day suspension.
The testimony of Ruh and Tarman is nearly
identical in describing how Skelton came into the
room red faced and upset. There is no reason to believe these statements were made to get
the grievant. While there may not have been the best relationship between Ruh and Skelton,
testimony bears out the fact that an incident occurred. The statements are true and credible.
The time of the incident was clearly
established. In his testimony, Ruh indicated he moved the
furniture around 1:30 p.m. His statement of the incident was written at 13:23 on September
the furniture had been moved and after Skelton confronted him in the shop about the
is no reason to question the time frame when both testimony and documentation clearly
when the incidents occurred.
The statement that just cause has not been
established is not justified in the brief of the union.
The seven steps are clearly outlined in the brief of the employer and clearly satisfy the
discipline was appropriate. The grievance should be denied.
In theory, this is a fairly straightforward grievance, unencumbered by complex
language or complicated histories of past practice. The collective bargaining agreement
the employer the ability to discipline "for proper cause." The relevant personnel handbook,
the union does not challenge, assigns a one day unpaid suspension as the proper discipline
for the first
offense of "creating a disturbance on the work premises by fighting or other conduct which
affects morale, production or proper discipline."
The parties have both explicitly cited the "seven tests" of arbitrator Carroll
that analysis, the employer has easily proven six of the elements without much effort. (1),
had notice of the rule against creating a disturbance; (2), the rule was
reasonably related to the
proper administration of a nursing home staff; (3), management made a reasonable
through interviewing all participants; (4), management conducted a
fair investigation, with no
evidence in the record of bias; (5), the rules were applied to all
employees involved, including both
represented and supervisory; (6), the one day suspension was
reasonable discipline because it was
set by a proper rule.
The only question remaining would be the most critical -- was there
substantial proof that
the event charged had occurred? What really matters is whether or not Skelton created a
which adversely affected the morale, production or proper discipline. If she did, I must deny
grievance; conversely, if I determine that her actions did not have that result, the grievance
Thus, I need to do determine the truth of an event that I did not witness.
Credibility is therefore a key element in the analysis. Not surprisingly, each witness
certain strengths and weaknesses.
I agree with the union that the pieces don't add up in Ruh's accounts. He wrote a
Skelton came into the shop room at 1:23 p.m. to complain about the way he moved the
event he testified happened "late in the afternoon," near the end of the shift. Simply, those
could not have both happened when Ruh said they did. Ruh's sworn testimony thus conflicts
his contemporaneous written account on this critical point. The fact that Ruh gave false
about how and why he moved the furniture when did doesn't necessarily
mean he's not telling the
truth about other aspects of the encounter, but it certainly doesn't help his
credibility when he
describes what happened next.
I also agree with the union that the nature of the incident Ruh acting rashly,
not calling on Skelton, Ruh damaging the floor sketches a scene which could very
well lead to Ruh
picking a fight with Skelton. By adding to Ruh's motive in having Skelton look as bad as
this aspect further complicates his credibility.
I disagree with the union, though, on the extent to which Ruh's loose way with the
means that Skelton didn't do essentially what the employer alleges.
Skelton's problem is that her account runs counter to not only Ruh's, but Tarman's as
Clearly, Skelton has a distinct motive in advancing a narrative that downplays her
creating a disturbance; Ruh has both general and specific motive in making Skelton look as
possible. But I can find no similar motive explaining why Tarman would be anything other
honest in his account.
Tarman testified that he and Ruh were discussing equipment problems "when Linda
and started talking to Scott in a raised voice. Then Scott came back in a raised voice." He
that Skelton "was upset," and that "she came in (to the maintenance shop) with a raised
Ruh's lack of credibility, and Tarman's lack of verification of such points as the
incident," leaves me inclined to accept the union's argument that Ruh exaggerated somewhat
describing Skelton's actions and demeanor. But the essential aspect of Tarman's testimony
an upset Skelton came in and started speaking to Ruh in a raised voice is all the
When Party A unexpectedly comes through the shop door, upset and speaking
sharply to co-worker Party B, we may reasonably expect there to be an incident
especially when there is an
ongoing bad relationship between the parties, as is here the case. So it's not surprising that
By definition, the incident that arose was a disturbance which adversely affected
discipline. Indeed, all three participants in the encounter two municipal employees,
were disciplined, all given one day suspensions without pay.
Tarman was quite candid in acknowledging his role in the affair, and in explaining
agreed with the one-day suspension the administrator imposed on him as well as Ruh and
"It was my position to see that there were not any disruptions in the workplace, and I did not
that," he testified.
On the deeper level of blame, I don't know who is more at fault. The length of
service with the county is in the record, but there is nothing to tell me what kind of
been over the last 26 years. Nor do I find anything in the record regarding Ruh's level of
in his six years on the job.
And ultimately, I cannot determine exactly what happened that afternoon. Skelton
merely sought to discuss the incident with Ruh and been taken aback by his explosive
may have respectfully asked Tarman to stay, and gently put a single finger on his shoulder.
may have burst into the room, fists formed and accusations flying, badgering both her
putative supervisor. Only Skelton, Ruh and Tarman could really know the truth.
All I can do is come to a conclusion on the broad outline of the incident, which is
came through the door in an upset attitude and with a raised voice, challenging the work of
she knew to be suspicious of and hostile toward her. It is hard to see how that would
not "create a
disturbance on the work premises by conduct which adversely affects morale, production or
Indeed, that is what it did. So that is what she did, as well. Skelton may well have
to be upset; any employee with pride in her work and concern over waste and abuse would
be upset at the poor, even destructive, performance and attitude of Ruh. The union is right
says that without Ruh's cavalier attitude toward the time and manner in which the bed was
none of this would have happened.
But Ruh's damage to the floor and the incident in the shop room were distinct and
events. It was Skelton, not Ruh, who initiated the encounter in the shop annex. In so doing,
was guilty of creating the disturbance which soon consumed Ruh and Tarman as well.
Accordingly, on the basis of the collective bargaining agreement, the record evidence
arguments of the parties, it is my
That the grievance is denied.
Dated at Madison, Wisconsin, this 24th day of January, 2002.