BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WAUPACA AIDES AND SECRETARIES
CENTRAL WISCONSIN UNISERV COUNCIL
SCHOOL DISTRICT OF WAUPACA/WAUPACA
(Rasmussen Discipline Grievance)
Mr. Timothy E. Smith, Director, Central Wisconsin UniServ
Councils, Unit 3, 625 Orbiting Drive,
P.O. Box 158, Mosinee, Wisconsin, appearing on behalf of Waupaca Aides and Secretaries
Davis & Kuelthau, S.C., by Attorney Edward J. Williams,
219 Washington Avenue, P.O. Box
1278, Oshkosh, Wisconsin, appearing on behalf of the School District of Waupaca.
Waupaca Aides and Secretaries Association/Central Wisconsin UniServ Council,
"Association," requested that the Wisconsin Employment Relations Commission appoint a
arbitrator to hear and decide the instant dispute between the Association and the School
Waupaca, hereinafter "District," in accordance with the grievance and arbitration procedures
contained in the parties' labor agreement. Lauri A. Millot, of the Commission's staff, was
to arbitrate the dispute. The hearing was held before the undersigned on May 30, 2002, in
Wisconsin. The hearing was transcribed. The parties submitted post-hearing briefs and
right to file reply briefs by August 3, 2002. Based upon the evidence and the arguments of
parties, the undersigned makes and issues the following Award.
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 were unable to stipulate to the substantive issues.
The District frames the issues as:
1. Did the Association comply with the provisions of
Article XXIII with regard to the
time lines with regard to filing and processing of the grievance through the grievance
2. Did the District violate the
provisions of Article XXII of the collective bargaining
agreement when it issued a one-day suspension without pay to Christine Rasmussen for her
on December 13, 2002; and if so, what is the appropriate remedy?
The Association frames the issues as:
Was the suspension of the grievant in accordance with Article
XXII, page 4, of Discipline?
If not, what shall the remedy be?
Having considered the evidence and arguments of the parties, the Arbitrator finds that
there is no material difference between the substantive issue identified by the parties, but that
Association ignores the procedural issue, I find the District's issues to be acceptable.
III. MANAGEMENT RIGHTS
3.01 The Board, on its own
behalf, and on behalf of the electors of the District, hereby retains and
reserves onto itself all powers, rights, authority, duties and responsibilities conferred upon
vested in it by the laws and the constitution of the State of Wisconsin, and of the United
States, including the following:
. . .
B. To establish reasonable work rules and
schedules of work;
. . .
D. To suspend, demote, discharge and take
other disciplinary action against employees in
accord with the terms of this Agreement;
. . .
22.01 Employees shall not be
discharged or suspended except in accord with the following:
1. Whenever possible,
the employee shall be given notice of his/her misconduct or
incompetence and the possible consequences of continued incompetence or further
2. The penalties
assessed must be in keeping with the nature and degree of the employee's
3. The employee's past
service in the District must be taken into account in the assessment
4. Progressive discipline
is acceptable and is to be encouraged where appropriate.
5. Rules, policies,
regulations, and order will be applied evenhandedly among all employees.
. . .
XXXIII. GRIEVANCE PROCEDURE
23.01 Purpose The
purpose of this procedure is to provide an orderly method for resolving
grievances. A determined effort shall be made to settle any such grievances at the lowest
possible level in the grievance procedure. Meetings or discussions involving grievances or
these procedures shall not interfere with the work duties. Nothing in the procedure shall be
construed to inhibit the continuation of rapport and informal discussion between staff,
principals and the District Administrator and his/her staff.
23.02 Definition For purposes of this
Agreement a "grievance" is defined as any complaint
involving the interpretation or application of a specific provision of this Agreement.
23.03 Form of
Grievance Written grievances shall give a clear and concise statement of the alleged
grievance including the facts upon which the grievance is based, the issues involved, the
specific section(s) of the Agreement alleged to have been violated, and the relief sought.
23.04 Initiation and
Processing Grievances as herein defined, shall be processed in the following
1. The employee shall
orally present the grievance to the Principal or immediate supervisor
no later than ten (10) working days after the grievance occurs. In the event of a
grievance, the employee shall perform his/her assigned work task and grieve his/her
complaint later. The Principal or immediate supervisor shall, within five (5) working
days, orally inform the employee of his/her decision.
2. If a satisfactory
settlement is not reached at the Principal or immediate supervisor level,
the Association shall prepare and present the grievance in writing to the District
Administrator within ten (10) days of the decision at Level One. The District
Administrator shall provide a written answer within ten (10) working days after receipt
of the grievance.
3. If a satisfactory
settlement is not reached at the District Administrator level, the
Association shall prepare and present the grievance to the Personnel Committee within
(10) working days after receipt of the District Administrator's written decision. The
Personnel Committee shall hold a meeting within ten (10) working days of receipt of the
written grievance to discuss the grievance with the aggrieved employee and the
Association representative. The Personnel Committee shall respond in writing within ten
(10) working days of the meeting.
4. Grievances not
settled at the Personnel Committee level of the grievance procedure may
be appealed to arbitration provided written notice of a request for arbitration is made with
the Clerk within ten (10) working days of receipt of the answer of the Personnel
When a timely request has been made for
arbitration, within ten (10) working days of the
appeal, the Association shall request the Wisconsin Employment Relations Commission to
appoint an arbitrator from its
staff. The arbitrator shall schedule a hearing on the grievance
and after hearing such evidence
as the parties desire to present shall render a written decision.
23.05 Time Limits Time limits set forth
may be extended by mutual agreement of the parties, only
if in writing. If the employer fails to give a written answer within the time limits set out for
any step, the employee may immediately appeal to the next step. Grievances not processed
to the next step within the prescribed time limits shall be considered dropped and final.
. . .
23.07 Arbitration Guidelines
1. The arbitrator shall
have no power to add to [sic] modify or otherwise alter the terms
of this agreement.
2. Cost of arbitration
mutually incurred shall be equally shared by the parties such as the
expense of the arbitrator, the cost of the hearing room and transcript.
3. The decision of the
arbitrator, within the scope of his/her authority, shall be final and
binding upon the Board, the Association, and the employees. Matters of jurisdiction
and authority must be determined by the courts.
BACKGROUND AND FACTS
The Grievant, Christine Rasmussen (hereinafter, "Grievant") was employed by the
five school terms ending in June of 2002 when she voluntarily resigned. The Grievant
the clerical position of vocational education secretary and subsequently the guidance office
assistant/secretary position. The Grievant's supervisor was High School Principal Bruce
Of significance to this grievance are the Grievant's telephone responsibilities which included
answering the main high school telephone and taking and distributing any telephone messages
students and staff. The Grievant's disciplinary history includes a written reprimand initially
October 29, 2001, revised and re-issued on December 19, 2001, for disregarding the
direction of her
supervisor and jeopardizing the safety of students and staff.
The Grievant's work area was in the main office with Mary Johanknecht and Joy
There is a history of interpersonal conflict between and among the secretaries in the
school main office. The first documented instance in May of 2000 when
Grievant met with Gunderson and Mr. Richmond, Vocation Coordinator and the
supervisor. Gunderson informed the Grievant that he had received a list of concerns from
clerical co-workers that related to the Grievant's duties, timecard, reporting times,
On November 9, 2001, Gunderson held a Secretaries Meeting with Rasmussen,
Oestreich, Mrs. Geary, Mrs. Karen Peterson, Johanknecht, Neumann and Griffin in
Gunderson prepared minutes from the meeting that read in pertinent part:
. . .
He also pointed out that we would all be
starting over on November 9, 2001 - this meant that
any documentation that secretaries held, prior to November 9, could and would not be used
disciplinary actions to defend themselves or used to file complaints against another union
He directed us to start over as of November 9, 2002 [sic].
Mr. Gunderson informed and directed the
secretaries to try and be pleasant with each other,
directing them to start saying "Good Morning" or "Hello," and exhibit positive attitudes with
Mr. Gunderson directed them to show slow
progress to get back to a sense of creating a positive
office and working environment. He chastised all for being immature and uncooperative.
reminded them, that he was responsible for nearly 1000 people in a $23 million dollar
everyday and that he was spending an inordinate amount of time dealing with matters
regarding inter-personal conflicts between secretaries.
. . .
Five weeks later, on December 13, the Grievant and Beth Oestreich engaged in a
altercation. The altercation began with Oestreich questioning the Grievant's compliance with
telephone usage policy and concluded with the Grievant telling Oestreich to "take your raging
hormones and go home." The District investigated the incident and on December 17, 2001,
discipline in the form of a suspension without pay against the Grievant. The day without pay
December 18, 2001.
On December 19, when the Grievant returned to work, she asked Gunderson whether
going to "reinstate" her. 1/ Gunderson did not understand the Grievant's question and asked
further explain her question. The Grievant then asked Gunderson whether he was going to
her from her suspension and retract the letter of reprimand. Gunderson told the Grievant he
1/ There is a discrepancy as to the date when
the oral conversation between Gunderson and the Grievant
occurred. Gunderson testified the date was December 19, 2001, which was the date in
which the Grievant returned
to work following the date of suspension. The written documents drafted by both the District
and the Association
indicate that the conversation occurred on December 20, 2001. I find that the oral
conversation occurred on
December 19, 2001.
On January 8, 2002, the Association submitted the following letter to Bruce
Waupaca High School Principal:
. . .
Re: Grievance for Christine Rasmussen
Dear Mr. Gunderson:
The Waupaca Aides and Secretaries
Association is submitting this grievance in writing on behalf
of Christine Rasmussen. The informal presentation of the grievance was made with you by
grievant on December 20, 2001, and no action was taken to correct the violation.
Please feel free to contact me at the CWUC
office at: 1 (800) 472-0010 or (715) 693-1740 if you
have any questions.
Timothy E. Smith
CWUC UniServ Director
Gunderson responded in writing to Smith in a letter dated
January 14, 2002, as follows:
. . .
Dear Mr. Smith:
I am in receipt of your January 8, 2002
letter regarding a grievance for Ms. Christine Rasmussen
and I have a number of concerns relative to that letter.
First, your state than an "...informal presentation of the grievance
was made with you by the
grievant on December 20, 2001..." is not correct. There was no mention of a contract
the meeting I had with Ms. Rasmussen on December 20.
Second, if your letter is intended to meet
the requirements in Step 2 of the grievance process as
outlined in the contract between the WASA and the School Board you have sent the letter to
Since your letter does not indicate your
expectations for a response I do not know how you wish
to proceed. However, in any event, I would like the opportunity to have the grievance orally
presented to me as required in Step 1 of the Grievance procedure. Please let me know how
would like to proceed.
High School Principal
. . .
On January 25, 2002, Smith directed the following letter to Poeschl:
. . .
Dear Dr. Poeschl:
The Waupaca Aides and Secretaries
Association is submitting this grievance in writing on behalf
of Christine Rasmussen. Ms. Rasmussen presented the first informal step of the grievance to
Gunderson on December 20, 2001. However, Mr. Gunderson indicated it was not clear to
a grievance was being presented at that time. I met with Mr. Gunderson on January 23,
went over the violation of the agreement and was told by Mr. Gunderson that you and he had
to stick to your decision.
Your immediate response to this matter will
be greatly appreciated. Please feel free to contact
me at the CWUC office. . .
Timothy E. Smith
CWUC UniServ Director
. . .
Poeschl responded to Smith's January 25, 2002 letter on or about January 31, 2002.
denied the grievance for the following reasons:
. . .
1. The grievance was not filed in a timely manner. Contract
Article 23.05 states "Grievances
not processed to the next step within the prescribed time limits shall be considered dropped
2. The contract was not violated.
. . .
Smith submitted the grievance to the President of the School
Board of Waupaca on or about
February 4, 2002. The Board Personnel and Negotiations Chair responded on
February 26, 2002,
indicating that the Board had met on February 18, 2002, to consider the grievance and
grievance for the same reasons cited in Poeschl's response of January 31, 2002, above.
The Wisconsin Employment Relations Commission received the Association's Petition
Arbitration on March 7, 2002.
POSITIONS OF THE PARTIES
The District argues that the express provisions of Article XXIII of the parties'
bargaining agreement requires that grievances not processed to the next step within the
time limit shall be considered dropped and final. It notes the Association did not adhere to
limits when the Grievant orally presented the grievance to her supervisor, Gunderson. The
acknowledges that the Grievant had a conversation with Gunderson on her first day back to
after her one-day suspension, but that during that conversation she neither uttered the word
"grievance" nor did she allege a violation of any specific contract clause. As such, the letter
January 8, 2002, was the first lodging of the grievance and it was untimely since it
was submitted 12
days after the grievance occurred.
The District next challenges the timeliness and processing of the written grievance.
January 8, 2002, document was not the written grievance because the oral grievance had not
occurred. Second, the document was directed to Gunderson rather than District
Poeschl. Third, if the January 25, 2002, document constitutes the written grievance, then it
written 25 days after the grievance first arose and 15 working days late.
The District argues that the Association failed to comply with Article 23,
Subsection 4, when it failed to provide the requisite written notice of a request for arbitration
the clerk of the School Board. Poeschl testified that as of the date of the hearing, the
yet to comply with Subsection 4. The District asserts that for solely this reason, the
"without jurisdiction in this matter."
The District notes that the testimony demonstrates that the Association was not
extension of time at any level and as such, the grievance was untimely at three separate
should be denied. The District reviews arbitral decisions, which uphold the strict
negotiated time lines, and the resulting dismissal of a grievance when the parties have
specific times lines which are not followed. See Diamond Power Specialty Corp. 44 LA 878
(Dworkin, 1964), New Youk Racing Association 43 LA 129 Scheiber, 1964), Oshkosh
District, Case No. 51-390 0067 85H, (Mueller, 8/85) and Kaukauna School District, Case
18, No. 37988, MA-4419 (Houlihan, 8/87).
Turning to the merits, the District argues that it complied with the provisions of
of the collective bargaining agreement when it disciplined the Grievant. The District argues
Grievant had interpersonal problems with Oestreich and Griffin. The District asserts that
admonished the Grievant and all of the secretarial staff in November, 2001, and informed
discipline would result if inappropriate relations continued. The District argues that there is
dispute that the Grievant told Oestreich to "take your raging hormones and go home." The
asserts that the Grievant's admission, coupled with her past service and prior discipline,
a verbal warning on October 10, 2001, and a written warning on October 29, 2001,
discipline imposed. The District argues that the determination of the penalty for misconduct
function vested with management and arbitrators should hesitate to substitute their judgment
of management and cites Stockham Pipe Fittings Co., 1 LA 162 (McCoy, 1945). The
concludes that arbitral case law support the discipline meted out in this case of a one-day
For the above reasons, the District submits that the grievance should be denied.
In response to the District's timeliness issues, the Association asserts that all
followed. The Association asserts that as a result of Gunderson misunderstanding the nature
conversation he had with the Grievant on December 20, 2001, the Association agreed to
Gunderson. The Association argues that Gunderson's request to meet to discuss the
constituted a wavier of the timelines.
Turning to the merits, the Association argues that the discipline imposed on the
to satisfy the contractual provisions of the labor agreement. The Association challenges the
compliance with Article XXII, Section 1, states that employees shall
be given notice of their misconduct or incompetence and the possible consequences.
was never given notice of her misconduct and further, that at the meeting with the Office
November 9, 2001, the District communicated to the staff that it would devalue any past
The Association next argues that the District has violated Section 2 and Section 3 of
XXII. It asserts that the District failed to take into account the Grievant's work history since
Grievant's supervisor had no complaints regarding the Grievant's work ethic. The
argues that the District failed to follow progressive discipline. The Association notes that
the Grievant may have been disciplined in the past, that discipline was entirely different and
related to interpersonal relationship conflicts among office staff.
The Association further asserts that the District has failed to comply with Section 4 of
Article XXI discipline is contractually required to be imposed in an evenhanded
manner and the
District has not meted out discipline evenhandedly in this instance. The Association points
two employees were involved in the interpersonal conflict giving rise to this grievance, but
one employee was disciplined for the offense.
The Association concludes that the District had been aware of the interpersonal
among its clerical staff for an extended period of time, but failed to intervene and appears to
taken the position that the situation would "just go away." The Association asserts that for
District to all of a sudden decide to discipline one employee is a clear violation of the labor
agreement. The Association asserts that ruling for the Association will place the District on
in the future of how discipline should be administered.
The District has raised the question of procedural arbitrability and this is a threshold
The District argues that the grievance was untimely at Steps 1, 2 and 4 of the Grievance
The Association argues that the District waived its right to object on the basis of timeliness
as a result
of its invitation on January 14, 2001, to meet to discuss the grievance. While I conclude that
was not a procedural violation with the oral presentation of the grievance, I do find that there
a technical violation with the presentation of the written grievance of a substantive violation
submission to arbitrate.
The event giving rise to the grievance occurred on December 13, 2001. The
procedure provides in Section 4, Subsection 1, that an employee "shall orally present the
to the Principal or immediate supervisor no later than ten (10) working days after the
occurs" and the Principal or immediate supervisor will orally provide his/her response within
working days. Thus, the Grievant and/or the Association had 10 working days from the date
incident to meet and orally discuss the grievance. Principal
Gunderson, the Grievant's supervisor, testified that on December 19, 2001, the
Grievant inquired as
to whether Gunderson was "going to reinstate me [the Grievant] from my suspension and
letter of reprimand." (Transcript p. 36). The District argues that this conversation does not
the "oral" of Subsection 1 of the grievance procedure because, according to the undisputed
of Gunderson, the Grievant did not use the word "grievance" in their conversation. I accept
conclusion of Arbitrator Kates who stated "[a]ll that is necessary, in my opinion, is an oral
to the propriety or validity of some Company action or decision and an effort by the
comments to obtain a change in the action or decision." Columbus Show Case Co. 44 LA
(Kates, 1965). The District had knowledge on December 19, that the Grievant was objecting
suspension and further, was aware that she desired that it be remedied. Gunderson
the Grievant was requesting and responded that he would not be rescinding her one-day
nor would he be removing the letter of discipline. I therefore find that the Association
Subsection 1 of the grievance procedure.
Subsection 2 of the grievance procedure requires that the Association submit a written
grievance to the District Administrator within 10 days of receipt of the immediate
Accepting that the conversation between Gunderson and the Grievant, which occurred on
19, 2001, constituted the Subsection 1 oral presentation of the grievance, I find that the
complied with the Subsection 2 time limit. The Association filed the written grievance on
8, 2002, with Gunderson. Although the record does not indicate the number of working
between December 19, 2001 and January 8, 2002, there is no dispute that 12 working days
between December 17, 2002, and January 8, 2002. Inasmuch as there is a two working day
difference and December 17-19, 2001, are two working days, I conclude that the written
was provided to Gunderson within the 10-day requirement as specified in Subsection 2. The
question as it relates to Subsection 2 is whether the written grievance was submitted to the
The District asserts that the Association erred when it submitted the written grievance
Gunderson rather than District Administrator Poeschl. Subsection 2 clearly provides that the
Association "shall prepare and present the grievance in writing to the District Administrator"
they did not do. The language of Article 24, Section 4, Subsection 2 of the collective
agreement is clear and unambiguous; the written grievance is to be submitted to the District
Administrator. There is no question that Poeschl was aware of the grievance. There is also
question that the District challenged the processing of the grievance based on non-compliance
the express terms of Subsection 2. Where clear and timely objection is made to procedural
no waiver will result from subsequent processing of the grievance on the merits and further,
objecting party should discuss the grievance on the merits in preparation for arbitration.
Elkouri, How Arbitration Works, 5th Edition p. 278 (1997). The Association
did not explain why
it filed the written grievance with Gunderson nor was any evidence presented at hearing to
that the parties have a practice of not submitting subsection 2 written grievances to the
Administrator. Even if I were to conclude that the Association had substantively complied
labor agreement and that this violation is technical, I find that in combination with the
violation, this grievance is nonarbitrable.
Subsection 4 of the grievance procedure states that the Association will provide
of a request to arbitrate a grievance to the Clerk of the District's Personnel Committee within
of receipt of the answer from the Personnel Committee. This is not a mere formality. The
uncontroverted testimony of District personnel indicates that the District did not have any
of the Association's decision to arbitrate this grievance and only learned of it when this
scheduled the hearing date. The failure by the Association to apprise the District of its'
arbitrate was in violation of the clear language of the labor agreement and potentially
District. The Association did not present any facts or circumstances to either explain or
the clear time limit language of the parties' negotiated labor agreement and therefore, the
non-compliance with Subsection 4 results in my finding the grievance was untimely.
In this case, the District asserted a procedural defect argument in each of its
grievance filings. The facts bear out that the grievance was procedurally defective at
and Subsection 4. Although it is not my desire to dismiss this grievance based on procedural
the language of the parties' agreement requires that I do so. Having dismissed the grievance
procedural grounds, it is unnecessary to address the merits.
No. The Association failed to comply with the provisions of Article XXIII with
time lines and processing the grievance through the grievance procedure to arbitration and
the grievance is denied.
Dated at Wausau, Wisconsin, this 1st day of November, 2002.
Lauri A. Millot, Arbitrator