BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WAUPACA COUNTY HIGHWAY DEPARTMENT
LOCAL 1756, AFSCME, AFL-CIO
(Gene Mykisen Grievance)
Mr. Gerald Ugland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box
35, Plover, Wisconsin 54935 on behalf of the Union.
Davis & Kuelthau, S.C., by Attorney James R. Macy, 219
Washington Avenue, P.O. Box 1278,
Oshkosh, Wisconsin 54903-1278, on behalf of the County.
At all times pertinent hereto, the Waupaca County Highway Department Employees
(herein the Union) and Waupaca County (herein the County) were parties to a collective
agreement dated July 14, 1999, covering the period January 1, 1999, to December 31,
providing for binding arbitration of certain disputes between the parties. On August 26,
Union filed a request with the Wisconsin Employment Relations Commission (WERC) to
grievance arbitration regarding a two-day suspension issued to Gene Mykisen (herein the
and requested the appointment of a member of the Commission's staff to arbitrate the issue.
undersigned was designated to hear the dispute and a hearing was conducted on October 22,
The proceedings were transcribed and the transcript was filed on November 13, 2002. The
filed its initial brief on December 16, 2002, and the Union filed its initial brief on December
The County filed a reply brief on January 6, 2003, and the Union filed a reply brief on
2003, whereupon the record was closed.
The parties were unable to stipulate to the framing of the issues. The Union would
issues as follows:
Did the Employer violate the collective bargaining agreement
suspending Gene Mykisen
for incidents occurring on October 15, 2001?
If so, what is the appropriate remedy?
The County would frame the issues as follows:
Did the County have just cause to give the Grievant a two-day
disciplinary suspension for the
incident of October 15, 2001?
If not, what is the appropriate remedy?
The Arbitrator adopts the County's proposed issue.
Article II Management Rights
2.01 The Waupaca County Board of Supervisors,
through its duly elected Highway Commissioner,
possesses the sole right to operate the Highway Department and all management rights repose
in it, except as otherwise specifically provided in this Agreement and applicable law. These
rights include, but are not limited to the following:
A) To direct all
operations of the Highway Department;
B) To establish
reasonable work rules and schedules of work;
. . .
D) To suspend, demote,
transfer, discharge and take other disciplinary action against
employees for just cause;
. . .
Article IX Disciplinary Procedure
9.01. The following disciplinary procedure is intended
as a legitimate management device to inform
the employees of work habits, etc., which are not consistent with the aims of the Employer's
public function, and thereby to correct those deficiencies.
9.02 Any employee may be
demoted, suspended or discharged or otherwise disciplined for just
9.03 Suspensions shall not be for
less than two (2) days, but for serious offense or repeated
violations, suspension may be more severe. No suspension shall exceed thirty (30) calendar
OTHER RELEVANT LANGUAGE
Personnel Policies and Procedures
D. Grounds for
Disciplinary Action. The following non-exclusive examples shall be
for disciplinary action ranging from a warning to immediate discharge depending upon the
of the offense in the judgement of management:
. . .
9. Absence without authorized leave, or misrepresenting the
purpose of an authorized
. . .
11. Habitual tardiness
. . .
The Grievant has been employed as a grader operator by the Waupaca County
Department since July 15, 1998. He also maintains a farm, which he operates while not
the County. Early on in his employment, while still on probation, the Grievant
had problems with tardiness, which is a violation of the County's published Personnel
was addressed on the subject by Patrol Superintendent Robert Carper. On May 9, 2001, the
was issued a verbal warning by Patrol Superintendent Lance Penney for being nine minutes
work on May 1. On June 21, 2001, Penney issued the Grievant a written warning for
tardiness. Neither of the disciplinary actions was grieved. At some point, the Grievant had
conversations with both Carper and Penney about timeliness issues and he was told that in
if he knew he was going to be late he should call in for permission and they would work
The Grievant's workday typically begins at 7:00 a.m. Each day, before leaving for
Grievant performs farm chores and tends his livestock. On October 15, 2001, when the
went to tend his cattle, he noticed that one of his cows was down. The cow had recently
and the Grievant was concerned that she, and perhaps her calf, could die, at a substantial
to him. At 6:30, the Grievant called the Waupaca shop and advised Penney of his situation.
evidence is unclear as to whether the Grievant asked Penney for permission to be late, or
informed him he would be late, but in either event, he indicated he would be at work by
Penney said "OK," and thanked him for calling in. When the Grievant arrived, the job
Dennis Stibbs, asked him how to account for the half-hour between 7:00 and 7:30 on his
and the Grievant said he didn't know, that the only available time he had to use was sick
he didn't know if it qualified under these circumstances. Stibbs then recorded on the
timesheet that the half hour from 7:00 a.m. to 7:30 a.m. was to counted as sick leave. The
ultimately worked until 6:54 p.m. on October 15 and was originally credited with 3.5 hours
overtime. Later, the sick leave entry was removed and .5 hours of overtime was deducted
On October 31, 2001, Highway Commissioner Dean Steingraber issued a two-day
to the Grievant, citing his tardiness on October 15 and an additional allegation of fraudulent
sick leave on that date. A grievance was filed on the Grievant's behalf by Union Chief
Pohl claiming a lack of just cause for the discipline. The grievance was denied and the
proceeded through the contractual steps to arbitration. On the day of the hearing, the County
amended the discipline to eliminate the allegation of fraudulent use of sick leave, but did not
the suspension. Additional facts will be referenced, as needed, in the discussion section of
POSITIONS OF THE PARTIES
The Union asserts that the Grievant should not have been disciplined because he had
permission to come to work late. He called his supervisor, Patrol Superintendent Lance
6:30 a.m., explained he had a sick animal and asked to come in at 7:30. Penney said "OK,"
him for calling and asked if he needed more time. Had Penney refused
permission, the Grievant was prepared to get to work by 7:00, as scheduled. Penney's
indicated that he didn't have independent recall of the conversation, therefore, the Grievant
The Grievant's action was in accordance with the call-in procedure for sick leave.
no procedure for calling in when an employee is not sick, however, in the past the Grievant
by both Penney and bob Carper that if he was going to be late he should call in and they
with him. This testimony was unrefuted. On this basis, the Grievant concluded that he had
permission to be late on October 15. Absent any evidence to the contrary, the Grievant was
to rely on his supervisor's authority to permit him to be late. Article XVI does provide for
without pay with written permission, which Penney did not provide. The Grievant should
penalized, however, for the supervisor's failure to note the authorized leave.
It should also be noted that the Employer originally also cited the Grievant for
of sick leave, which was later withdrawn. This should be factored in when deciding whether
original level of discipline was appropriate. Had the discipline been lessened, however, the
would still object to the tardiness charge.
The Grievant's previous excused absences should not be used against him. He had
and received unpaid leave in the past and was not told that this would be held against him.
there is no evidence that the Grievant's late arrival on October 15 hindered the Department's
operations. On the other hand, he had a substantial reason for his request, in that he could
have lost a valuable animal. For the foregoing reasons, the grievance should be sustained.
The County asserts that it did not violate the contract in disciplining the Grievant.
Management has the right to discipline employees for just cause under Section 9.02 of the
as well as the County's Personnel Policies and Procedures. Further, the Grievant testified
that he was
aware of the work rules prohibiting absence without authorized leave and habitual tardiness.
Timeliness of employees is an important goal because of the Department's efforts to
the quality of its services. The Grievant has been counseled in the past about tardiness and
received verbal and written warnings for this behavior. Clearly, he knew that he was
expected to be
to work on time. On October 15, he called his supervisor and told him he would be late.
supervisor acknowledged the call, but did not give him permission to be late or state that he
not be disciplined. The Grievant's conduct was a violation of the work rules and subject to
The contract does not define just cause, but this term has been the subject of much
by arbitrators [See: Grief Brothers Cooperage Corp, 42 LA 555 (Daugherty, 1964.);
Enterprise Wire Co., 46 LA 359 (Daugherty, 1966); Blue Cross/Blue Shield, 104 LA 635
(House, 1995)]. Under the standards set forth therein, the Grievant clearly committed the
alleged and was subject to discipline.
The County was also justified in the level of discipline imposed. The County follows
of progressive discipline. The Grievant had already received verbal and written warnings for
and a suspension was the next step. Section 9.03 specifies that a suspension may not be for
two days. Therefore, the County imposed the least onerous level of discipline it could within
scheme of progressive discipline. Whether or not the Arbitrator agrees, however, he should
substitute his own judgment for that of the County as to the appropriate level of discipline
omitted). Thus, once just cause to impose discipline is established, the level of discipline
should not be disturbed. The grievance should be denied.
The Union in Reply
The Employer argues that the Grievant merely told Penney he would be late, but, in
asked if he could come in late and was told "OK." Penney's version of this conversation
by his poor recall in that he refreshed his memory by reviewing the grievance, which wasn't
drafted by the Grievant, but by a Union Steward. The Steward simply wrote down a short
of the grievance based on hearsay. It is not evidence and should have no weight. The
version was more credible and should be credited.
The Employer also based its original discipline decision on a supposition that the
fraudulently claimed sick leave, which later was withdrawn, although the discipline was not
Thus, both the Employer's original contentions that the Grievant did not have
permission to be late
and that he wrongfully claimed sick leave were false.
The Employer did not have just cause to discipline the Grievant. He was never told
could not call in if he was going to be late. In fact, Penney told him to call in and they
with him. The Grievant reasonably believed that meant if he had an emergency, the County
work with him on it. Unexcused tardiness is subject to discipline, but the Employer led the
to believe he could get permission by calling in. If this was not the case, he should have
been told so.
Had be been told, he could have been to work on time. Penney was aware of the previous
yet gave the Grievant permission to be late on October 15. Clearly, this was a different
case. In a
previous arbitration, Arbitrator Lauri Millot sustained discipline issued to an employee for
absence on the basis that he was informed and knew that he was required to obtain prior
from the Highway Commissioner [Waupaca County, WERC MA-11456, (Millot, 1/9/02)].
absence in that case was excusable, but unexcused, thus the discipline was upheld. Here, the
also excusable, but the Grievant was not given a directive to get permission from the
as he should have. Instead, the Commissioner denied the permission and imposed the penalty
The County in Reply
The Grievant had a long history of tardiness, for which he had been previously
disciplined. The contract gives the County the right to discipline employees for just cause
habitual tardiness is an explicit violation of the County work rules. The County used
discipline and the minimum suspension allowed under the contract was two days. The Union
not deny that unexcused tardiness would be just cause for discipline, but instead argues that
Grievant did not violate the rules. Thus, if the County establishes a violation, the Union can
objection to the discipline.
The facts demonstrate that the Grievant did not have permission to be late. Penney
approve his absence, but merely acknowledged his call. Further, the Grievant would have
regardless of whether he had permission in order to care for his animal, placing his interests
of the County's. Penney could not authorize him to be late, which he knew from previous
he had received. Thus, there was just cause for the suspension.
It is irrelevant that the County withdrew the charge of fraudulent use of sick leave.
Grievant's past history of discipline made it clear that another reprimand would be
contract mandates that a suspension be for at least two days. Therefore, the County imposed
severe discipline it could under the circumstances, even with the withdrawal of the additional
It is also irrelevant that the circumstances of this incident were not identical with
tardiness by the Grievant. It does not matter that the Grievant called in this time, or that he
did not do so in the past. What is important is his record of habitual tardiness, which
County's highway operations, and for which he was properly disciplined.
In a case such as this, where the issue is whether there was just cause for imposing
the burden of persuasion is on the Employer. TheEmployer must
establish that there was just cause
to issue discipline to the Grievant. That is, it must show that the Grievant committed the
complained of and that the acts alleged justify the imposition of discipline.
The first step in the analysis is to determine whether the Grievant committed the
charged, that is being tardy for work without permission. There is no question that the
to work at 7:30 a.m. on October 15, 30 minutes after his regular starting time.
Thus, the key event was the telephone conversation between the Grievant and his
supervisor, Lance Penney. According to the Grievant, on October 15, 2001, he telephoned
a Patrol Superintendent, at 6:30 a.m., told him he had a sick cow and asked if he could
come in at
7:30 instead of 7:00. Penney reportedly said "OK," thanked him for calling and asked if he
more time. Penney's version is somewhat different. His recall, refreshed by the wording of
grievance itself, is that the Grievant called and told him he would be late, but did not ask for
permission. His response of "OK," further, was intended to be an acknowledgment of the
information, not permission to be late. He also stated that he didn't recall asking whether
Grievant needed more time and that the subject of discipline was never raised in the
It is notable that the discipline was ultimately issued by Highway Commissioner Dean
not Penney, although Penney was the supervisor directly involved and had issued the
previous disciplines for tardiness. In his testimony, Steingraber indicated that his
revealed that Penney had not given the Grievant permission to be late and, in fact, did not
authority to do so.
Although the exact words of the conversation between the Grievant and Penney are in
dispute, what is undisputed is that when Penney said "OK," the Grievant took that to be
to be late and acted accordingly in reliance thereon. His reliance appears to have been based
several factors. First, there is the statement, itself. Whether the Grievant asked permission
to be late
or merely stated his intention to do so, Penney responded "OK. Thanks for calling." This
could certainly have constituted permission and, at the very least, was an ambiguous remark
could have been interpreted that way. Then, there is what was unsaid. Given the Grievant's
attendance problems and discipline history, one could have expected Penney to either have
the Grievant to come in on time or warned him about the consequences of not doing so. He
neither and, even accepting his version of the conversation, never indicated that the
tardiness would be any problem. Finally, there are the Grievant's past discussions with
Patrol Superintendent Bob Carper about his tardiness. According to his testimony, which
contradicted by Penney, the Grievant was told by both men that if he had a problem and
be late he should call in advance and they would work with him. When he called Penney
sick cow, absent any indication to the contrary, he assumed that he had complied with his
responsibility and that Penney would, therefore, accommodate him.
The County argues against the reliance theory on two essential grounds. First, it
that permission made no difference and the Grievant would have come in late regardless.
Grievant testified, however, that he could have and would have been at work on time had he
ordered to do so. Although the Grievant had previously had problems with tardiness, there
evidence that the Grievant had ever willfully disobeyed a direct order in the past, or that he
have done so here. Nevertheless, because the Grievant was not told to come in, it is
speculate as to what he would or would not have done in such a case.
Second, the County contends that Penney had no authority to permit the Grievant to
therefore his reliance was unfounded. Whether or not Penney had such authority is open to
Steingraber denied that Penney had such authority. Nevertheless, neither the contract nor the
work rules specifically restrict the ability to grant unpaid leave to the Commissioner.
is no evidence that the Grievant was ever informed that the Patrol Superintendent did not
such authority. Indeed, the statements attributed to Penney and Carper that they would work
the Grievant in the event he had to be late in the future implies just such authority. Whether
the authority existed in fact, therefore, becomes irrelevant because the Grievant's reliance on
Penney's apparent authority waspermissible and reasonable under the
circumstances. In sum,
therefore, I find that Penney's statement to the Grievant on October 15 could have been
construed by him as permission to come to work late and, further, that based upon all the
circumstances the Grievant was permitted to infer that Penney had authority to grant the
the foregoing reasons, therefore, and based upon the record as a whole, I hereby enter the
The County did not have just cause to give the Grievant a two-day disciplinary
for the incident of October 15, 2001. Therefore, the County shall make the Grievant whole
expunging the discipline from his personnel record and paying him two days' backpay.
The Arbitrator will retain jurisdiction over this award for a period of sixty (60) days
issuance in order to resolve any issues regarding implementation of the Award.
Dated in Fond du Lac, Wisconsin, this 5th day of August, 2003.
John R. Emery