BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 986-A, AFSCME, AFL-CIO
Mr. Neil Rainford, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Steven Rollins, Corporation Counsel, Manitowoc County,
appearing on behalf of the County.
The Union and Employer named above are parties to a 2000-2001 collective
agreement that provides for final and binding arbitration of certain grievances. The parties
requested the Wisconsin Employment Relations Commission to appoint the undersigned to
resolve the grievance of Kathleen Stahl. A hearing was held on June 3, 2003, in Manitowoc,
Wisconsin, at which time the parties were given the opportunity to present their evidence and
arguments. At the conclusion of the hearing, the parties gave oral arguments in lieu of filing
The record was closed upon the conclusion of the hearing on June 3, 2003.
The parties did not stipulate to the framing of the issue. The issue is:
Did the Employer have just cause to suspend the Grievant on
June 17, 2002? If not, what is
the appropriate remedy?
The Grievant is Kathleen Stahl, who is a site manager at Manitou Manor Apartments,
is a housing apartment building owned by the City of Manitowoc for elderly and disabled
qualify to live there. She serves as a manager of a meal site for the elderly and disabled
has worked for the County for 24 years and has been at Manitou Manor since 1999. On
2002, the Grievant was given the following notice of discipline from Judy Rank, the Aging
This letter confirms our conversation of June 14, 2002, in which I
offered to meet with you to
gain any additional information you would like to have me take into consideration prior to
a final decision of what disciplinary action should be taken in connection with your removal
rolls from a meal site for your personal use, and your falsification of records. You had been
of the allegations of misconduct and my preliminary decision to suspend you for two weeks
response to this misconduct via a letter dated June 10, 2002. In our conversation of June 14,
you refused this opportunity to offer additional information.
I offered to meet with you again to discuss
this situation so that you would have one final
opportunity to offer any additional information as to why you reported that the leftover food
thrown away when in fact you were freezing the leftover dinner rolls, or as to why you
thought it was
acceptable for you to take these rolls from the meal site.
Having received no additional information, I
have decided to impose a two week suspension for
the offenses listed in my preliminary letter of June 10, 2002. These dates of suspension will
on Tuesday, July 2, Wednesday, July 3, Tuesday, July 9, Wednesday, July 10, Friday, July
Monday, July 15, Tuesday, July 16, Thursday, July 18, Friday, July 19 and Monday, July
future instances of similar misconduct may lead to continued progressive discipline, up to
Bonita Wilker is the nutrition program coordinator and is the Grievant's supervisor.
asked the Grievant to document the number of meals served and to show whether there was
of one item or not enough of another item sent for the meal program. The Grievant is
keep records, such as the number of meals ordered and the number of meals that were
The Grievant also documents what happens to the meals and has stated on records that food
down the disposal when she has more food than needed for the number of meals served.
the Grievant that she should log that difference in the number of people being served to what
ordered. The County was required to document that information for state and federal
The funding for the meal program is developed from such records, and Wilker noted that it
important for the records to be accurate.
Wilker sent a letter to the Grievant on June 4, 2001, noting that documentation was
done in a manner to satisfy requirements. Wilker gave examples of how to document meals
leftover food, and she also warned the Grievant that failure to follow that procedure could
There is a meal site manual for Manitou Manor which was given to all the site
including the Grievant. The manual states that leftover food must be thrown out, except for
margarine. The Grievant could not locate her site manual when asked about it during the
investigation of the disciplinary action noted above. Wilker also could not find a manual at
The manual was distributed at a meeting on December 1, 1999, and the Grievant was at that
Rank stated that they went through the manual page by page.
On July 11, 2001, the Grievant attended a site managers meeting. They discussed the
and federal regulations and compliance with them, as well as the policy on taking food out of
The site managers were told that participants that come to the site are allowed to take milk,
and dessert home if they are unable to finish it and if the food is a first serving. Second
to be consumed at the site, according to regulations. All other food has to be thrown down
disposal. Also during that meeting, a sheet was given to the site managers regarding that
it was posted. (Wilker did not find this sheet posted when she investigated the incident in
in this case.) Only participants are allowed to remove food as part of their first serving and
not permitted to remove food from the site. The regulations are designed to protect the
from having food that could spoil.
On Monday, May 13, 2002, Wilker visited Manitou Manor and parked next to the
car in the parking lot. As she got out of her van, she noticed a package of 12 dinner rolls in
package that was in the back seat of the Grievant's car. She told the Grievant that there was
package of Konop dinner rolls in her car, and the Grievant said something about taking it
feed the animals. Wilker later reported this to her supervisor, Judy Rank.
When Rank investigated the matter, she talked to the Grievant, who admitted that she
rolls in the freezer, and since the freezer was getting full, she decided to take them home to
the geese. Rank stated that the Grievant had been writing on her production slip that all
was being thrown away. Rank considered this a falsification of records as well as taking the
Employer's materials without authorization. Rank was concerned that the Grievant showed
remorse and did not recognize the seriousness of the offenses. Rank also considered the past
disciplinary record of the Grievant in her decision to impose a two-week suspension. The
since 1998 shows three written warnings, four verbal warnings, and one suspension.
The Grievant was trained at Manitou Manor by previous employees and volunteers.
she started at that site, she noticed bread and rolls in the freezer. Another employee
some of the clients would ask for an extra slice of bread to make a sandwich if
they were being served meatloaf. So she kept bread Monday through Friday, then
disposed of it on
Friday. The Grievant was bothered by throwing packages of rolls away, so she took one for
geese and put in the back seat of her car, leaving it in her car several days to harden. The
testified that it never occurred to her to mark down the bread when documenting the
told Wilker several times that they were overstocked on vegetables and other things but did
mention the extra bread or rolls.
After the incident, the Grievant was told to freeze leftover dinner rolls. Wilker now
them up and they are re-used by sending them out with frozen meals. Manitou Manor is
close to the
senior center, and Wilker transports it to the senior center. Wilker was not previously aware
extra bread was being kept from Monday through Friday, then thrown away.
Personnel Director Sharon Cornils stated that the County has a personnel policy and
procedure manual that says that people cannot convert County supplies or materials for their
use. She noted that the Employer should not have to tell people to not steal from them. The
has given other employees similar disciplinary measures. It gave one employee a two-week
suspension for theft of some sand and another employee a two-week suspension for theft of
dirt. One employee was given a 30-day suspension for theft of food from the Sheriff's
kitchen, and another was given a 30-day suspension for theft of food from the jail kitchen.
THE PARTIES' POSITIONS
The County submits that there are two questions in this discipline one, did
notice of what she should be doing, and two, is the discipline fair. As to whether the
notice, there is clear evidence that the Employer had counseled her, had disciplined her, and
stressed the importance of keeping good records. Despite that, the Grievant did not report
bread and the method for disposal. While the Grievant claims she took the bread because
like to see it wasted, she told her Employer about the vegetables being wasted. Moreover,
Grievant's failure to properly document the amount of bread meant that the Employer did not
notice of the waste going on at that site. The removal of a usable product from the
place is a serious problem. Even the theft of scrap is grounds for discipline in many
decisions. This Employer has disciplined other employees for minor items taken from its
The amount of material converted to personal use is not the issue it's the fact that
converted to personal use. The County asserts that the two-week suspension is proportionate
offense. Other employees have been given two weeks to 30 days for taken items of little
rolls here were taken without any authorization. The federal rules governing the program
food be disposed of and not removed from the site.
The Union asserts that the disciplinary actions taken in other cases are not similar to
At the point when the Grievant took the dinner rolls and put them in her car, they were
Grievant made a reasonable decision to find a way to recycle those materials. The Union
the claim that the Grievant falsified records, as there was no intent to misrepresent anything.
Grievant simply omitted the rolls on the records. The Union also objects to the term theft.
Grievant was handling bread the way she had been trained. The County is entitled to
rules, but it has an unreasonable rule and it is an unreasonable way to interpret the rule when
Grievant was doing nothing more than recycling garbage.
The collective bargaining agreement provides a just cause standard for discipline.
clearly shows that the Grievant knew or should have known the rules about disposing of all
food. She attended meetings where the matter was discussed and she was notified by a
from her supervisor, Wilker, about proper documentation. Despite the fact that former
of Manitou Manor put left over bread and rolls in the freezer, the Grievant should have
such a procedure was not proper and could have brought it to the attention of her Employer.
Moreover, the Grievant should have known that she was not keeping correct documents when
did not report anything about the bread and rolls. Further, the Grievant had to know that
food from the site was a violation of the rules.
While the Union asserts that the rule is unreasonable, it is not the County's rule but
state or federal regulations that require all food to be consumed or thrown away. The
administrates the program while other entities make the rules. Thus, whether the rule
disposal of food is reasonable or not is irrelevant where the Employer cannot control the
requirements of this program.
The Union further contends that the County's enforcement of the rule is unreasonable
the circumstances, where the Grievant is simply recycling garbage. However, the Grievant
to properly document the use and disposal of food. Then the Grievant took food off the
knowing full well that she was not to take food from the site. She did so without any
and without anyone's knowledge. While the Grievant does not appear to have any malicious
to steal food from the County, the Grievant shows a flagrant disregard for the Employer's
and procedures and rules.
Under many circumstances, a two-week suspension would be excessive, but in this
Grievant has already been disciplined eight times in the last four years, including one prior
The Employer properly used progressive discipline and treated the Grievant
fairly. The Grievant was not treated more severely than other employees who
or food for their own use. The Grievant's own disciplinary record weighs heavily against
determining the appropriate level of discipline.
Accordingly, I find that the Employer had just cause to issue a two-week suspension
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin this 18th day of August, 2003.
Karen J. Mawhinney, Arbitrator