Indiana County Highway Department and AFSCME
OPINION AND AWARD
In the matter of Arbitration
Indiana County Highway Department, Employer
An arbitration hearing was conducted on August 26, 2003 at Elkhart, Indiana. The issue at hand concerned the termination of Dennis Stevens a Highway Maintainer II with the Elkhart County Highway Department. The Employer was represented by Roger W. Benko, attorney. The advocate for Mr. Stevens was Dwight Arndt, Staff Representative for The American Federation of State County & Municipal Employees (AFSCME) Council 62.
At the hearing the parties jointly submitted various documents regarding the situation giving rise to this grievance including the Collective Bargaining Agreement in effect and the grievance trail. In addition to verbal testimony, management submitted numerous documents and the union did likewise. Both parties timely submitted post hearing briefs. All materials were reviewed and considered by the arbitrator in reaching this decision.
Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases. Both sides did so professionally and competently.
Two issues were presented to the Arbitrator for resolution. 
The first issue was presented by management who contended the demand for arbitration was not timely filed and thus the grievance should not be arbitrabile.
The parties agreed that, if the grievance was
found to be timely, then the issue before the arbitrator would be: “Was
Mr. Stevens terminated for just cause? If
not, what shall the remedy be?”
In that this grievance deals with a disciplinary matter, management assumed the burden of proof and presented its case first.
COLLECTIVE BARGAINING PROVISIONS:
2 MANAGEMENT RIGHTS
1. Except as otherwise expressly provided in this Agreement, the Union
agrees that the County shall have the right to establish policies; methods of
work; work and safety rules; the right to schedule work; the right to
subcontract; the right to assign equipment to be used in the operation of the
County's business; the right to hire, discharge, suspend, discipline, promote,
demote, assign, and transfer employees; and the right to release employees
because of lack of work, funds, or for other proper and legitimate reasons.
10 DISCIPLINARY AND GRIEVANCE PROCEDURES
1. General Conduct. Employees shall maintain standards of conduct necessary
for public service. Courtesy must be extended to all persons seeking services
from the department. Unacceptable conduct shall be considered just cause for
discipline or discharge of an employee. Unacceptable conduct shall include,
but not be limited to, the following actions:
2. Disciplinary Procedures.
Employees who violate the provisions of this Agreement
or the regulations and policies of the department are subject to the following
is recognized that some employee actions could require immediate suspension or
dismissal, thereby eliminating some of the above steps.
3. Inactive Disciplinary Actions. Disciplinary actions not involving
suspensions, or discharges will be considered inactive after a period of two
Section 4. Discharged
Employees. Discharged employees shall have three (3) working
days to file a
grievance that shall be processed immediately at the second step of the
5. Grievance Procedure. A grievance under this Agreement shall be defined
exclusively as a dispute or complaint arising under and during the term of
this Agreement. Grievances shall be concerned only with specific matters of
interpretation or application of the provisions of this Agreement.
Step: The grievance of any
employee shall be presented in writing to the Manager of Transportation within
five (5) calendar days from the time of occurrence of the alleged grievance.
The Manager shall attempt to resolve the grievance within three (3) calendar
Step: If a satisfactory
settlement has not been reached in the First Step, then the grievance shall be
presented to the Commissioners by a representative of each party. The
Commissioners shall act upon the grievance at their next regular meeting after
the presentation of the grievance to them at Executive Session. The union
representative may request mediation after the employee has been notified of
the Commissioners' decision. A request for mediation, and the procedures to be
utilized in the mediation process requires agreement by both parties.
Step: If a satisfactory
settlement is not reached in the Second Step, then arbitration may be
initiated. In order to initiate arbitration, the Manager of Transportation for
Elkhart County and/or the union representative may write the Federal Mediation
and Conciliation Service (FMCS) for a panel of seven (7) arbitrators who shall
be members of the American Arbitration Association. Such written notice to the
FMCS must be made within ten (10) working days after the conclusion of the
Second Step of this Grievance Procedure and may be extended by mutual consent
of both parties. Within seven (7) working days of receipt of the arbitrator
names, the parties shall meet and alternately strike an arbitrator until only
one name remains which person shall be the arbitrator. The party initiating
the grievance shall strike the first name. Meetings required to process the
Third Step of a grievance shall be scheduled after regular working hours and
shall be without pay. The arbitrator is limited to interpretation of the
specific provisions of this Agreement and shall submit a decision within
thirty (30) calendar days of the later of the conclusion of the hearing or the
filing of briefs. The decision of the arbitrator shall be binding on the
parties and employee involved. Expenses for the arbitrator's services and the
proceedings shall be borne equally by the County and the Union.
12 WORK SCHEDULE
1. Normal Workweek. The normal workweek shall be forty (40) hours per week.
The normal work day shall be Monday through Friday 7:00 a.m. to 3:30 p.m.
There is an unpaid meal period of one-half (1/2) hour per day from 11 :30 a.m.
to 12:00 noon. Employees are free to utilize their meal period as they wish
but are expected to be at the work site and available for work at the close of
the meal period. Exceptions to the above specified time shall be based upon a
reasonable request from an employee to his supervisor. In the event the
supervisor finds the work cannot be reasonably interrupted, a change in the
meal period may be necessary.
13 SICK TIME
2. Authorized Usage: Sick time, may be used for the following purposes:
injury or illness of the employee, and office calls for doctors, dentist,
optometrists or other medical professionals as may be necessary. In addition,
up to three days (24 hours) of eligible sick time may be used on a calendar
year basis when an injury, illness or emergency involving an immediate family
member requires the employee to care for such family members. To receive sick
time with pay, an employee must notify his supervisor within one (1) hour
before the employee is scheduled to report to work or as soon as circumstances
Elkhart County Highway Department is charged with maintaining the County roads
in Elkhart County Indiana. Dennis
Stevens was employed as a Highway Maintainer II and assigned to one of the
four quadrants of the County.
Mr. Stevens also served as steward of AFSCME
Mr. Stevens was terminated by the County February 20, 2003 for a
“pattern of tardiness and disregard for Elkhart County’s work rules and
contends that the demand for Arbitration is not timely filed.
The County Commissioners considered the step 2 grievance appeal and
made a decision on the evening of March 17, 2003.
The Union Representative sent a letter to the
County dated April 1, 2003 (actually faxed on April 3) informing the employer
that he was requesting a Panel of Arbitrators from the FMCS.
The employer argues that the collective
bargaining agreement states: “Such written notice to the FMCS must be made
within ten (10) working days after the conclusion of the Second Step of this
Grievance Procedure and may be extended by mutual consent of both parties.” 
that the letter was sent April 1, management counts eleven (11) working days
and thus argues the demand is untimely and the arbitrator lacks authority to
consider the grievance.
The Union agrees with the dates offered by
the County but notes that the contract also anticipates the possibility of
mediation by “mutual consent.” The
Union representative reached out to the County via letter and telephone.
On March 20, Dwight Arndt sent a letter to Jeff Taylor requesting
mediation. He offered a phone number, a fax number and a pager number.
Instead the County Director of Personnel
responded in writing six days later in a letter dated March 26, rejecting the
request for mediation.
Arbitrator William H. Holley, Jr. faced a
similar issue in a case earlier this year. In considering a timeliness challenge he noted “Arbitrators
in resolving factual disputes surrounding the timeliness of grievances and
demands for arbitration have consistently held that the burden of proof on
such an issue is on the party raising the timeliness issues as a bar to the
Grievance and any uncertainty on this issue should be resolved in favor of the
grievance going forward.” 
For this arbitrator, the decisive language is
contained in the Collective Bargaining Agreement when it states: ….Such
written notice to the FMCS must be made within ten (10) working days after
the conclusion (emphasis added) of the Second Step of this Grievance
The Commissioners acted on March 17.
In a very timely manner the Union Representative attempted to secure
the agreement of the County to go to mediation.
As was their right, the county refused that request, but they did not
do it in a timely matter
The failure of the County to respond to the
request for mediation in a prompt manner, at least, tolls the time limits for
Further, there is no evidence that the Union
was ever officially notified of the outcome of the action of the
Commissioners. The record
indicates that Mr. Stevens was present at the Commissioners meeting but no
testimony was offered regarding whether there was official notification at
If the County is going to assert a strict
application of contractual time lines then they have a duty to provide more
formal service of the notice of the action taken by the Commissioners.
The attendance of the President of the Union might have been helpful to
help determine the dates of service.
I find the County failed to meet its burden
to convince this arbitrator that the timelines were violated.
The grievance is found to be arbitriable.
MERITS OF THE CASE:
POSITION OF THE COUNTY:
In the view of the County, Dennis Stevens was
terminated because he developed a pattern of
tardiness. He was warned
numerous times and received a short suspension.
In spite of these steps, Mr. Stevens was tardy again on February 19,
2003. The County terminated his
employment February 20, 2003.
employer presented its well documented expectations regarding attendance by
submission of the County Policy Manual and the work rules of the Elkhart
County Highway Department.
After noting that the collective bargaining
agreement only permits consideration of the disciplinary record of an employee
for the previous two years, the employer documented the attendance infractions
of Mr. Stevens starting with an incident on March 2, 2001 when he arrived
approximately twenty minutes late (7:20 a.m.)
He was counseled for this infraction.
Management exhibit 3 was offered to document
tardiness on September 10, 2001 wherein the grievant called at 7:10 a.m. and
stated he was just leaving home. No action was taken on this occasion.
On August 8, 2002 the grievant was issued an
Oral Reprimand for being two minutes tardy.
(Management exhibit 4).
On November 8, 2002 the employee returned
from lunch 11 minutes late and was issued another Oral Reprimand. (Management
January 16, 2003 the grievant failed to
report to work on time. At 7:30
he called in to report that he would not be coming in to work due to illness.
Grievant was suspended for one day and served notice of the suspension
January 21, 2003. The
disciplinary notice included the warning: “Further
violations will result in additional discipline being given, up to and
The County introduced testimony regarding the
creation and utilization of an internal procedure where all the Supervisors
serve on an ELKHART COUNTY HIGHWAY DISCIPLINE BOARD.
It was explained that this Board reviews potential disciplinary
infractions and offers recommendations to the Manager regarding the
advisability of discipline. That
Board met on January 16 and unanimously concurred with the immediate
supervisor’s recommendation to issue a suspension.
The County Manager agreed and issued the one day suspension.
The suspension was served on January 22,
2003. On February 19 Mr. Stevens
again did not report to work on time. He called in at 7:59 a.m. and stated he had overslept.
He was order to report for duty.
Immediate Supervisor Mike Beasey convened the
Discipline Board (referred to in this document as the “Incident Revue
Board” and recommended termination, because of the ongoing problem of
tardiness. Again, the Board
unanimously concurred. The
recommended was forwarded to Manager Jeff Taylor.
The County presented several other documented
incidents relating to non-attendance infractions.
April 5, 2001 grievant was observed not wearing a safety vest.
No action was taken.
A document dated August 9, 2001 was entered
(management exhibit 14) which discusses two incidents.
One was a question about turning off trucks at the work site and the
other related to the grievant when he “struck a(n) A-Frame.”
Neither appeared to result in any kind of discipline.
In incident occurred on April 20 wherein the
grievant placed a very loud shirt over his approved safety t-shirt.
He was ordered to remove the outer shirt.
No discipline was issued.
A January 4, 2002 document titled a “letter
of admonishment” was issued
to the grievant by Mike Beasey, concerned the failure to fill out Daily Work
Sheets. It appears Supervisor
Beasey viewed this document as discipline based upon the warning contained
therein: further acts of Neglect or
Insubordination will result in further disciplinary action.”
On 9/17/02 Stevens was observed without a
safety vest. No discipline
December 6, 2002 involved an incident
regarding Stevens and another employee taking an early lunch.
Discussion apparently took place but no discipline was imposed.
A memo from January 14, 2003 was submitted
that documented a problem with the grievant not responding to a phone call
directing all drivers to report for duty at 4:00 a.m.
Management believes this pattern of behavior
constitutes just cause to support the termination of Dennis Stevens and asks
the Arbitrator to deny the grievance.
POSITION OF THE UNION:
The Union believes the case against Mr.
Stevens is flawed in that the County skipped a step in the progressive
discipline provision of the collective bargaining agreement when they did not
give Mr. Stevens a written reprimand prior to suspending him.
They proposed an anti-union animus argument
that notes Mr. Stevens is a steward and there appears to be an interpersonal
problem between him and the supervisor.
The Union notes that the County has asserted
Mr. Stevens was insubordinate as one of the reasons for the termination.
They argue that there is no evidence Mr. Stevens was ever
Even if there were violations the Union
argues that termination is much too severe a penalty.
It was noted that the County offers an
Employee Assistance Program for employees with problems.
Mr. Stevens was never referred to EAP for assistance, but instead was
Union’s argument regarding anti-union animus is not well taken or
convincing. There is no evidence
that any other union official has received discipline as a result of their
protected activities. Likewise, no evidence was presented that would link Mr.
Stevens to any specific anti-union activity.
There does appear to be a strained
relationship between the grievant and some supervisor(s) but this arbitrator
is unable to conclude that such feelings have led to any action that would
negate the discipline.
The EAP argument is also rejected.
The EAP is a voluntary one wherein the employee may, at any time, seek
the assistance of that organization. No
evidence was presented which would indicate that the employee has made any
effort to do so. There is also no
requirement on management that they propose such assistance.
Termination is always a serious step in the
workplace and much care must be done to assure it is done properly, according
to contract, and that it is the appropriate step.
In reviewing whether terminations have been
for “just cause” arbitrators must first examine exactly what the
“charge” is against the employee, and then determine if management has
proved the charge.
In some jurisdictions, and under some
contracts, there is a specific form or notice that has been negotiated or is
required. These usually require a
specific citation of exactly what is being charged.
This does not appear to be the case in Elkhart County.
Thus, the arbitrator must first examine the
records presented to determine exactly what the grievant was charged with.
The documentation of the Discipline Board
appears to contain the answer. Management exhibit 11 includes this sentence:
“Mike recommended termination,
because of the ongoing problem of tardiness.”
This arbitrator commends the county on the
establishment of an internal process such as the “Discipline Board” in
order to provide an internal review mechanism which enables more supervisors
to examine, and possibly point out, other approaches to discipline.
I also reject the Union’s argument that they should have been
informed when this Board was created. It
is strictly an internal management structure to assist in making good
In this case, it is clear that the only
matter under consideration in determining “just cause” is the “ongoing
problem of tardiness.”
The information presented regarding safety
vests, and turning off trucks and other alleged insubordinate acts, while
possibly informative about the work ethic of the grievant are not relevant to
a “just cause” review of the termination action.
An examination of the “problem of tardiness”
shows that the grievant does have significant difficulty getting to
work on time. This is a problem
that must be addressed in the workplace.
The mission of the Elkhart County Highway Department is significantly
impacted by persons who are not at work when they are supposed to be.
The question is whether the pattern of
tardiness (and other attendance issues) is sufficient to support termination.
A literal reading of the collective
bargaining agreement in Article 10 would suggest that if an employee is
counseled, then receives an oral reprimand followed by a written reprimand,
and a suspension that employee is then subject to termination even for
something as minor as reporting to work late.
I am not sure if such an action would be supported by a majority or
arbitrators or not. A review of
recent published cases show a number in which employees are terminated for
violation of attendance and tardiness policies but none show support for as
few as four incidents of tardiness in a two year period.
Arbitrator Harris, in Georgia Pacific & IBEW Local 1583 (118 LA
577) upheld the termination of an employee who was tardy forty one (41)
times in an 18 month period and Arbitrator Hockenberry, (Gallaudet
University & SEIU Local 82, 95 LA 963) upheld the termination of an
employee who was tardy ten (10) times in ten (10) weeks.
This would be a difficult case if management
had carefully and completely followed every step in their progressive
The Attorney for the County points out to the
language in the contract which follows the steps in the progressive discipline
process and which states: “It is recognized that some employee actions could require immediate
suspension or dismissal thereby eliminating some of the above steps.”
This type of language is common in many
contracts. It is added to ensure
the employer has the ability to deal with those serious situations when
progression is not practical or appropriate. The employee who comes to work intoxicated, or engages in the
commerce of drugs, or steals, or a myriad of other infractions cannot expect
to move through the steps of the progressive discipline procedure.
The employee who is tardy can.
The County then advances the argument that
the one day suspension was never grieved to arbitration and thus any errors
that might have occurred prior to that event are “cured” by the inaction
of the grievant and the union.
Ordinarily this argument would be persuasive.
The examination of this situation reveals the following:
The incident giving rise to the one day
suspension occurred on January 21, 2003.
The Suspension was served on January 22,
A grievance was filed on January 24, 2003.
Jeff Taylor informed Union Representative
Scott Swinehart that he was returning the grievance on January 27, 2003.
Apparently the grievance was resubmitted
sometime after January 27. (the record is unclear on this point, but
Management Exhibit 22 is the original grievance with an attachment.)
February 4, 2003 Jeff Taylor sent a denial of
the grievance to Scott Swinehart.
On February 13, 2003 Scott Swinehart sent a
memo to Jeff Taylor (Management exhibit 24) informing him that “we
[the union] feel we have no choice but to pursue the grievance to the next
Soon after this notice was sent Mr. Stevens
was involved in the February 19 incident and was discharged from employment
the next day.
In reviewing these facts one cannot conclude
that the union abandoned its claim that progressive discipline had not been
no arbitrator can rule on a matter unless it has been processed to the
arbitration stage, it is relevant and necessary that I examine the underlying
matter of the missing written reprimand.
This defect in management’s case has not been “cured” by the fact
the grievance on the suspension was never processed to arbitration.
collective bargaining agreement apparently assigns some weight to the steps
beyond the oral warning when it refers to an “Official
written warning.” This step
was thought to have some meaning in possibly warning the offending employee
that dire consequences would follow further infractions.
cannot just skip this step because they are irritated by the failure of the
employee to correct his behavior.
this arbitrator hasten to note that the grievant is also not blameless in this
matter. He did not take serious
steps to resolve whatever was keeping him from getting to work on time.
If personal problems were at the root, then EAP was (and is) available
to provide assistance.
employer has an absolute right to expect employees to be at work regularly and
on time. Employees who do not
comply can be discharged from employment after all contractual obligations
have been met. In this case
management moved too soon.
The grievance is therefore granted in part and denied in part.
find the Elkhart County Highway Department did violate the collective
bargaining agreement when it failed to follow all the steps of progressive
discipline in dealing with the tardiness of the grievant.
county is to offer Mr. Stevens reinstatement to a position of Highway
Maintainer II within three weeks of the receipt of this award.
Mr. Stevens will have two weeks to accept or reject the position.
Stevens is to receive back pay for the period of time between his discharge
and the date of the offer to return to work, minus the following deductions:
An amount equal to thirty (30) work days of pay, which shall be marked
in his personnel records as a suspension for attendance related infractions.
Any interim earnings that he may have, (or should have), earned during
the period he was separated from employment.
following conditions are also awarded:
Mr. Stevens will otherwise be made whole.
Mr. Stevens is to seek and receive assistance from the Employee
Assistance Program or other appropriate provider to deal with any problems
contributing to his attendance and tardiness.
He is to verify his participation in such program either to the
Personnel Director for Elkhart County Highway Department or to his Union
Representative, who, in turn will inform the County when he has initiated such
Mr. Stevens is to view this as a “last chance reinstatement” and
note that any further infractions of the tardiness, attendance policies of the
County will most likely lead to termination from employment.
The arbitrator will retain jurisdiction for a period of one year to
assure the terms of this award are met and to resolve any disagreements that
might arise regarding the computation of the back pay award. 
Issued this 25th. Day of October, 2003 at
 There was some discussion of a determination on the previous suspension. The parties agreed that this suspension was not appealed to arbitration and thus is not an issue to be determined by this arbitrator.
 Post Hearing Brief of the County.
 Collective bargaining agreement, Article 10, page 14.
 In re KEEBLER COMPANY, COLUMBUS GA. PLANT and BAKERY, CONFECTINERY, TOBACCO WORKERS AND GRAIN MILLERS, Local 42, 118 LA 326, FMCS Case No. 920325/07510-3, February 14, 2003.
 Further alleged violations of safety rules or matters of insubordination should be handled by the County as matters of training, supervision and/or discipline separate from the terms of this “last chance” reinstatement.